EU: Civil Protection Mechanism

Lord Pearson of Rannoch: asked Her Majesty's Government:
	Whether they have supported, in the Council of Ministers, the European Union's use of Article 308 of the Treaty Establishing the European Community as the legal basis for the European Union's civil protection mechanism.

Lord Bassam of Brighton: My Lords, I welcome the noble Lord to his seat in his usual place. In 2001 the United Kingdom supported the adoption of a council decision establishing the EU civil protection mechanism. The mechanism has Article 308 of the Treaty Establishing the European Community as its legal base. The mechanism provides a means for member states to prepare for and to offer mutual assistance and assistance to third countries in the event of natural or man-made disasters.

Lord Pearson of Rannoch: My Lords, I am grateful for the noble Lord's words. As Article 308 allows the European Union to act only in the course of the operation of the Common Market, how can it be used to pass this new power to Brussels? It is a new power to Brussels because it now includes acts of terrorism and man-made disasters. Secondly, is it true that the Government were isolated in their objection to this proposal but mistakenly thought that under the treaties an abstention counts as a veto, which of course they were too frightened to cast, and so they voted for the wretched thing? Finally, can the Government give your Lordships' House a list of all other powers which have been passed to Brussels under Article 308?

Lord Bassam of Brighton: My Lords, first, I do not recognise it as an entirely new power. It has been there for years. I also take issue with the disparaging comment the noble Lord appeared to make about the value of Article 308, which enables the European Union to make aid and assistance available to those who undoubtedly need it when there is a man-made or natural disaster. Those are surely extreme circumstances, and it seems entirely right that we act within the remit of Article 308 to provide such assistance.

Lord Dykes: My Lords, I thank the Government for wisely not going to the wire on this matter despite the slight geographical inconsistency in Article 308. All the other countries in effect wanted the new mark 2 text of the civil protection mechanism to be agreed, and the Government went along with that, putting in a file note. Does the Minister, like me, think it bizarre for the apparent leader of UKIP in the House of Lords to be so obsessed with this one matter when we know that UKIP officially wants us to withdraw from the European Union, despite the fact that so many countries still want to join as of this very moment?

Lord Bassam of Brighton: My Lords, would I want to describe UKIP as "bizarre"? It is very tempting. We have acted entirely properly in this situation, as I have explained. Article 308 has the virtue of enabling us with a legal base to provide the sort of care and assistance that we should extend in situations where there is a humanitarian need. If we look at it in that light, it explains our position vis-à-vis the European Union.

Lord Stoddart of Swindon: My Lords, does Article 308—

A noble Lord: UKIP!

Lord Stoddart of Swindon: No, I am not UKIP; I am independent Labour; and not independent new Labour, either. If Article 308 is designed to deal with matters Common Market, how can it be used for matters that are clearly nothing to do with the Common Market? What other measures are taken under this article, and are they in fact legal?

Lord Bassam of Brighton: My Lords, clearly it is in the interests of the EU to ensure that, from time to time, aid is provided to countries outside the European Union that have need of humanitarian aid and recovery for a period, perhaps when their economy and infrastructure have been fundamentally blighted. That is why the EU uses Article 308 as the legal base for such humanitarian aid and assistance.

Lord Howell of Guildford: My Lords, after hearing from independent Labour, perhaps we can have a say. We, with our European neighbours, strongly favour humanitarian work; it seems thoroughly desirable. Nevertheless, the European Scrutiny Committee in another place went into the matter in great detail and had to point out to Ministers that abstaining on this measure would not veto it. Ministers thought that it would veto it and they put documents to the committee, which I have in my hand, showing exactly what Ministers thought. Subsequently, they had to be corrected. My simple plea is for Ministers to be a little more careful in following and understanding the procedures in the Community so that we do not get dragged into things that we do not want to do and that we take a proper lead in things that we want to do.

Lord Bassam of Brighton: My Lords, I take from the noble Lord's question the fact that he supports Article 308 and that he is delighted that the UK Government have done this. However, I take issue with the noble Lord on the actions of certain Ministers. I am sure that Ministers at all times attempt to act entirely properly and within the procedures and processes of another place.

Lord Monson: My Lords, does the Minister acknowledge that Article 308 allows the EU to act only,
	"in the course of the operation of the common market"?
	Does he agree that the civil protection mechanism, however worthy and desirable, has nothing whatever to do with the Common Market?

Lord Bassam of Brighton: No, my Lords, I do not entirely agree with that for the very reasons that I gave to the noble Lord, Lord Stoddart, the independent Labour Member of your Lordships' House. Clearly, it is in the EU's interest to ensure that we assist those with whom we have trading relations in the operation of their markets and their ability to trade. For that reason, we provide such humanitarian aid and assistance as we can to ensure that those countries get back on their feet and operate in the wider world.

Lord Tomlinson: My Lords, does my noble friend agree that Article 308 is a perfectly sensible mechanism for the Community to agree on the things on which it wants to agree? If I were to criticise the Government, I would criticise them for their reluctance in relation to this application of Article 308. However, they came to the right conclusion in the end. In this Question, are we not just seeing the same old Lord Pearson of Rannoch: new party but same old arguments?

Lord Bassam of Brighton: My Lords, as ever, the noble Lord, Lord Tomlinson, speaks with infinite wisdom.

Lord Inglewood: My Lords—

Lord Rooker: My Lords, we must move on. We are well into the eighth minute.

Housing: Affordable Homes

Lord Northbourne: asked Her Majesty's Government:
	At the last date for which figures are available, how many couples with a child under five were living with relatives or in temporary accommodation waiting to buy an affordable home.

Baroness Andrews: My Lords, the latest estimate, for 2003-04 to 2005-06, is that the average number of couples with one or more children under the age of five who were living with relatives was about 35,000. The equivalent estimate for single parents with children under five is about 65,000, making a combined figure of about 100,000. We do not have any information on how many of those families might be waiting to buy an affordable home.

Lord Northbourne: My Lords, I am most grateful to the noble Baroness for those figures, which are extraordinarily disappointing. Does she agree that, for a young couple with their first baby, to have to face the prospect of spending two or three years with mother-in-law before they can get a home of their own is not a good recipe for the future of that family? Does she further agree that the target for any Government who care about the nation's children must be to try in some way or another to offer young couples with their first baby access to affordable accommodation within, I suggest, seven days of the baby being born?

Baroness Andrews: My Lords, we certainly want the best start for all children and all families. Ninety per cent of these families have one child. We have found that 23 per cent of those who access our low-cost house programmes are families with children, so we are reaching them. However, this issue is about adopting a variety of strategies. It must be about building more homes, which is why we have pledged to build 200,000 extra homes a year to meet growing demand. It is about bringing into home ownership people who cannot afford market prices. We aim to bring in 120,000 such people by 2010. It is about improving and modernising our council stock. It is also about developing a whole range of low-cost housing options for such families.

Baroness Pitkeathley: My Lords, I know very well from my work with CAFCASS, in which I declare an interest, that overcrowding often leads to relationship breakdown and separation. Can we hear more from the Minister about what the Government are doing about overcrowding, particularly in relation to what I believe are higher figures on overcrowding for black and minority ethnic families?

Baroness Andrews: My Lords, that is a very important question. Compared with a national average for overcrowding of 2.7 per cent of households and 6.5 per cent of households in London, 23 per cent of such households are classified as being overcrowded. We need to do something to improve the statutory standard for overcrowding, which has not been changed since 1935. The area with the most acute problems is London, which is where we are concentrating effort. We have put £19 million into 24 pilot schemes run by the London boroughs to tackle overcrowding. We are working out with the Mayor where the problems are concentrated. We will publish a summary of responses to the consultation document which we issued in July, which will look across the issues, particularly in relation to BME populations, which comprise 23 per cent—one quarter—of those households. We will look at a regulatory impact statement, which addresses those problems in particular.

Baroness Walmsley: My Lords, is the Minister concerned that the situation that we are discussing has a very bad effect on the early years of a child's education, yet only about one-fifth of families with children under four who are in temporary accommodation access Sure Start services? Does she agree that until we have enough outreach workers to get the information about the benefits of Sure Start to some of the hardest-to-reach families, we will never crack that 20 per cent figure?

Baroness Andrews: My Lords, there is a wealth of evidence, not least that which has been commissioned by the department, about the impact of overcrowding on health—it can lead to respiratory conditions, for example. It has an impact also on education—children do not have enough space to do homework and suffer too much distraction from siblings and so on. Sure Start is the obvious vehicle. The expansion of Sure Start, combined with its smarter marketing, is the key to breaking these vicious cycles of deprivation.

Baroness Gardner of Parkes: My Lords, does the Minister agree that, although it is very hard for these people to live with relatives, temporary accommodation can be very much worse? Does she have a breakdown of the figures? Will she confirm that all kinds of schemes are being considered to make it easier for people initially to rent a home and then move on to buying one?

Baroness Andrews: My Lords, reluctantly, I do not entirely agree with the noble Baroness, because I think that temporary accommodation has improved a lot in recent years. There are two good things to say about it: first, the numbers in temporary accommodation are falling significantly and consistently. We now have about 93,000 people living in that kind of accommodation. That is still too many, but 92 per cent of them are living in self-contained accommodation and have their own front door and cooking facilities.
	The second point that the noble Baroness raises is really important. Putting low-cost home ownership within reach of, for example, families in London with incomes of less than £35,000 or of those outside London with less than £30,000, is a very important step. A recent report on shared equity suggests that by 2010 we will be able to get about 160,000 into such accommodation, using the private sector more effectively than we have done.

Baroness Hanham: My Lords, in view of the terrible figures that the Minister has just quoted of people still living in overcrowded and temporary accommodation, will she say how she believes the newly created agency, made up of English Partnerships and the Housing Corporation, is likely to have any impact on this problem?

Baroness Andrews: My Lords, first, may I say how delighted I am that the noble Baroness, Lady Ford, is going to chair that new agency? There could be nobody better to do that, and I am delighted that she is on our side. Bringing together English Partnerships and the Housing Corporation, as recommended by the Barker report, will result in provision for land supply, more intelligent planning of land and more intelligent and proper targeting for housing. That goes along with the new PPS on housing, which means that we can be much more intelligent about how we assess housing needs and plan for it, which can only be a good thing.

Baroness Hollis of Heigham: My Lords, does my noble friend agree that one difficulty facing young couples in seeking accommodation in the private rented sector is knowing whether they can afford the property on offer to rent? Does she agree that the Government's proposals for rent allowances should go a long way to taking some of those difficulties out of the system, thus ensuring that young couples can get speedier access to decent homes?

Baroness Andrews: Yes, my Lords, the rented sector and rent arrangements have been extremely complicated; nobody knows that better than my noble friend. Rent allowances are definitely a step in the right direction.

Universities: Visa Fees

Lord Hannay of Chiswick: asked Her Majesty's Government:
	What impact assessment they have made of the effect on the higher education sector of a possible further increase in visa fees for international students; and what consideration they are giving to waiving such fees.

Lord Triesman: My Lords, the recent charging consultation document reaffirmed the Government's commitment to attract genuine students to the United Kingdom. Students make a valuable contribution to our economic growth and cultural enrichment. We are currently working on options, based on research nearly complete, that will set fees at a level to meet the Government's wider objectives, including the costs of running operations and maintaining services. Central to any decision will be the consideration of the market research on price. The final decisions have not yet been taken.

Lord Hannay of Chiswick: My Lords, while thanking the Minister for that reply, I draw his attention to the fact that he did not answer either parts of the Question on the Order Paper. The first related to an impact assessment. Does he recognise that on the last occasion when visa fees were raised for students, there was no impact assessment? He has not today given any undertaking that there will be one on this occasion, nor has he answered the question whether the Government are considering waiving visa fees for students in higher education. Does he not think that that is a rather feckless attitude to take towards what is a huge asset to the United Kingdom, which we are holding on to with difficulty in competition with countries such as Australia, Canada and the United States? We are losing market share. We need to take account of those points.

Lord Triesman: My Lords, we do not intend to waive the fees because the arrangements made with the Treasury are clear. We have to cover costs; those are the Treasury regulations in this matter, as I said to the noble Lord in an Answer more or less a year ago. The research to which I referred will be the most exhaustive piece of market research that will have been undertaken on pricing in this area. It will cover matters of impact and I promise that it will be made available in full to everybody who wishes to see it.

Baroness Rawlings: My Lords, we in the UK higher education sector are disadvantaged by the very slow and difficult processing of student visas, which means that we lose out on many students. Do Her Majesty's Government have a strategy that will make us competitive with other countries, such as there is in the United States, which now guarantees rapid processing of visa applications, including next-day interviews? I declare an interest as chairman of King's College council.

Lord Triesman: My Lords, the overall performance of the service in issuing visas has improved enormously. Independent reports show that we are now probably the fastest country in the world in issuing visas. There are difficulties in that; if we are to have secure borders, we must have a system in which we can root out forged documents and forged education certificates, which—as I think everyone running universities now knows—constitute a serious risk to our border control. But we are meeting targets in almost all cases.

Lord Wallace of Saltaire: My Lords, can the Minister confirm that the costs as allocated include an allowance for the costs of appeals? That is one reason why the costs of renewing a visa in this country turn out to be so much higher than the estimated costs for introducing the identity card, which some of us feel is quite extraordinary. Will he also confirm that this represents a Home Office policy that goes against the policy of the education department and the Foreign Office of encouraging more student exchange and, in particular, of encouraging more students from developing countries to come to this country?

Lord Triesman: My Lords, the whole approach is to ensure that we charge for an end-to-end process, as the Treasury requires. I have been quite straightforward in telling the House that there are aspects of border control—of making sure that, before people come into the country, we are getting documents and evidence that can be verified or shown to have been forged—where there is a cost. But if this country is determined to have secure borders to the maximum possible extent as well as to welcome students—to which the Government and I personally are wholeheartedly committed—then there is a balance to be struck.

Lord Acton: My Lords, I declare an interest as honorary president of the Association of American Study Abroad Programmes UK—I knew that I would have the longest title. Perhaps I can help my noble friend with his market research. Is he aware that the association estimates that some 7,500 such American students will require visas, but that they spend some £20 million each year in this country? Are those not 20 million good reasons for listening to the noble Lord, Lord Hannay?

Lord Triesman: My Lords, if there were a capacity, as some might argue that there should be, for us to set aside Treasury rules on how to cover costs, then the argument could be taken to another level. Yet the Treasury regulations are as they are. To aid everybody's market research, I will point out that, despite what has been said, over the past year there was a 21 per cent increase in the number of students from China, a 27 per cent increase over comparative quarters from Turkey, and a 22 per cent increase from India. I will not go through the full list, but this country is in a positive state in the marketing of its higher education. Let us not assume that there is grief where there should actually be much pleasure.

Lord Crickhowell: My Lords, the Minister has now three times given as his reason for pursuing this policy the fact that the Treasury requires it. Is the Treasury no longer part of Her Majesty's Government, for whom he answers?

Lord Triesman: My Lords, I know of no more powerful part of Her Majesty's Government than Her Majesty's Treasury. However, the fact is that we have to be able to pay for the systems that I have described. With end-to-end security, as well as rapid treatment of people when they apply for visas—in the past year, we had to pay for the introduction of biometrics, which will increase our security considerably—the money has to come from some reliable source. The Treasury is not to be condemned for that.

Baroness Symons of Vernham Dean: My Lords, is my noble friend aware that, when I was travelling in the Middle East this past weekend, people with whom I was discussing various business matters went out of their way to congratulate the United Kingdom on the speed with which we currently deal with our visas in that part of the world? They said that the service had improved immensely.

Lord Triesman: My Lords, I am grateful to my noble friend for making that point, because the statistics stand on their own. Whatever I say, I invite Members of the House to look at the statistics on the speed with which we deal with these things. I hope that that has contributed, for example, to the 24 per cent growth in the number of Saudi students in the United Kingdom in the past year.

Armed Forces: Expenditure

Lord Wallace of Saltaire: asked Her Majesty's Government:
	Whether, following the speech made by the Prime Minister in Plymouth on 12 January, they propose significant increases in defence spending.

Lord Davies of Oldham: My Lords, departmental expenditure limits for 2008-09 to 2010-11 will be set in the 2007 Comprehensive Spending Review.

Lord Wallace of Saltaire: My Lords, I thank the Minister for that holding reply. I hope that he will agree that the Prime Minister's speech in Plymouth should be recommended reading for all Members of this House. The Prime Minister buys into the neo-conservative view of world politics; he talks about a long war against a single enemy—all the mistakes that the Americans make on global terrorism. However, he stated very clearly:
	"For our part, in Government, it will mean increased expenditure on equipment, personnel and the conditions of our Armed Forces; not in the short run, but for the long term".
	Is that not a clear Prime Ministerial pledge for a significant and sustained increase in defence expenditure?

Lord Davies of Oldham: My Lords, I agree with the noble Lord that every Member of the House would benefit from reading the Prime Minister's speech, but the interpretation that they would give it would be rather different from that which the noble Lord has indicated. We are in the process of establishing defence expenditure for the next three years, as part of the Comprehensive Spending Review. Our projections beyond that will be made at a later stage, but there will be a number of contributions to that debate. The Prime Minister's contribution will, of course, be regarded very seriously and very importantly indeed.

Lord Tomlinson: My Lords, while I would not for a moment dream of dissenting from the views that my right honourable friend the Prime Minister expressed in Plymouth—and there is the need of which he spoke—would it not help also if Members of your Lordships' House emphasised the imperative not only of getting more expenditure in the United Kingdom, but of persuading our NATO and EU allies to increase the percentage of the gross national product that they commit to mutual defence issues? At the moment, we are bearing a wholly unfair burden by comparison with many of those allies, not least in the present actions in Afghanistan.

Lord Davies of Oldham: My Lords, I am grateful to my noble friend. For Britain to play its part in the modern world with regard to defence issues, it will need to work in alliance with other countries. We look towards our partners in NATO to play their full part and, as my noble friend has indicated, we hope that their contributions both in Afghanistan and elsewhere will match those that we are presenting.

Baroness Knight of Collingtree: My Lords, when the Government are considering the necessary future expenditure on defence to which the Minister referred, to what extent are they considering the cost of the 7,000 or 8,000 British troops—I have found it not to be possible to find the exact figure—to be allocated to what in this country is called the rapid reaction force and in Europe is called the European defence force?

Lord Davies of Oldham: My Lords, the cost of that contribution to the force is included in the provisions for defence in this country. That force represents a successful area of international co-operation and Britain is pleased and proud to play its part within that framework.

Lord Foulkes of Cumnock: My Lords, is my noble friend aware that yesterday was the 300th anniversary of the signing of the Act of Union between Scotland and England? Is that not a cause for celebration? In case he is wondering about the relevance of that question, would he ask the Ministry of Defence to undertake a study of the effect on bases like RAF Lossiemouth and Rosyth, the Clyde naval base and many others in Scotland, in human and economic terms, if we were ever to implement the Scottish National Party's policy of breaking up Britain?

Lord Davies of Oldham: My Lords, I had not the slightest doubt that my noble friend would ask a highly relevant question on this particular day. Let me emphasise that if there were any thought of breaking up the United Kingdom, the costs that he identified would be an important part of the balance.

Lord Newby: My Lords, does the Minister agree that, in considering future defence expenditure, the Government should concentrate expenditure on the troops themselves, be that by way of accommodation or essential equipment, rather than on expensive weapons systems, which combine massive cost over-runs with dubious operational value?

Lord Davies of Oldham: My Lords, there is no question of the British Government ever doing anything other than putting troops first with their defence expenditure.

Lord Hamilton of Epsom: My Lords, does the Prime Minister not have a nerve to come to the end of 10 years in power, having committed our troops to wars in the Balkans, Sierra Leone, Afghanistan and Iraq—during which time there has been barely any increase in the defence budget—in trying to commit his successor to significant increases in defence spending, when during his time we have seen troops ill equipped? Their barracks are a disgrace and the married quarters worse. All our Armed Forces are overstretched.

Lord Davies of Oldham: My Lords, the truth is that defence expenditure has been increasing at 1.2 per cent each year. This is contrary to the nerve of the noble Lord, who was part of an Administration who reduced defence expenditure.

Earl Attlee: My Lords, can the Minister explain why this Government have reduced the percentage of GDP spent on defence?

Lord Davies of Oldham: My Lords, they have not.

Lord Clark of Windermere: My Lords, would my noble friend, when considering defence spending, pay no attention to the major party opposite, which cut defence spending by 30 per cent in its period of government?

Lord Davies of Oldham: My Lords, my noble friend is right, but I pay attention to what the party opposite says; it helps to identify why people should vote Labour.

Mental Health Bill [HL]

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]

Lord Carlile of Berriew: moved Amendment No. 28:
	After Clause 20, insert the following new Clause—
	"CHAPTER 2B Criminal justice system amendments
	Court mental health report for those remanded on bail
	Before section 35 (remand to hospital for report on accused's mental condition) of the 1983 Act, insert—
	"34A Remand on bail for a mental health report
	(1) In relation to the Crown Court, this section applies to a person who—
	(a) has been sent for trial before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for it (unless he has been convicted of the offence and the sentence is fixed by law), (b) has been committed to the court to be sentenced for such an offence and has not yet been sectioned or otherwise dealt with for it, or (c) has been committed to the court under section 43 and has not yet been dealt with under that section.
	(2) In relation to a magistrates' court, this section applies to a person who has appeared before the court charged with an offence punishable on summary conviction with imprisonment and has not yet been sentenced or otherwise dealt with for it.
	(3) Subsections (4) and (5) apply if the court—
	(a) remands on bail a person to whom this section applies, and (b) is satisfied on the evidence of a registered medical practitioner that there is reason to suspect that the person is suffering from mental disorder.
	(4) The court may require the appropriate authority to arrange for an approved clinician to prepare a report on—
	(a) the person's mental condition, or (b) the appropriate medical treatment for that condition,
	(or both) in order to assist the court in dealing with the person for the offence.
	(5) The court may specify any particular matters which are to be included in the report (including an assessment of the risk posed by the person to members of the public).""

Lord Carlile of Berriew: With Amendment No. 28, which stands in my name and that of the noble Earl, Lord Howe, we are debating Amendment No. 29.

Lord Hunt of Kings Heath: Did the noble Lord say that he was grouping Amendment No. 28 with Amendment No. 29? My understanding is that the noble Lord is speaking to Amendment No. 28 and that the grouping of Amendment No. 29 and Amendment No. 30 will follow.

Lord Carlile of Berriew: I am grateful to the noble Lord. I shall speak only to Amendment No. 28.
	Amendment No. 28 would provide for better case management in court when there are issues about the mental health of those who are remanded on bail. If the amendment—or something very close to it—is adopted, it should provide for better and more reliable results, and more profound assessments of mental health in court.
	It is very common for psychiatric reports to be prepared for a court when somebody is awaiting sentence. That is usually done on the application of the defence. Perhaps the Minister should know that there are sometimes funding difficulties in obtaining medical reports in certain cases. It is often difficult for solicitors to obtain prior authority for the funding of such reports, and sometimes they have to take the risk, albeit on the advice of counsel, that such reports should be obtained. They are not always paid for and sometimes the solicitors have to carry the expense.
	The amendment would enable the judge to decide whether, in his or her opinion, there is a requirement for a medical report, particularly dealing with the kinds of issues with which the Bill and the Mental Health Act 1983 are concerned. Proposed new subsection (5) is of especial potential assistance. It would permit the court to specify any matters to be included in the report and, in particular, an assessment of the risk posed by the defendant to members of the public.
	The Committee will be aware that the Government have introduced a new form of sentence, the IPP—imprisonment for public protection. This is an indeterminate sentence, which occasionally has given rise to press controversy because, although the IPP is passed, the judge is in effect required to specify the minimum period which he or she thinks the defendant should serve. When passing an IPP, the judge is specifically required to assess the risk or dangerousness posed by the defendant. Giving the court the statutory power to specify particular matters to be included in the report would, in my view, be of especial assistance in dealing with IPPs.
	There is also the issue of the difference between defendants who are remanded in custody for mental health reports under Section 35 of the 1983 Act and defendants who are remanded on bail. This provision would place people who are remanded on bail in an equivalent position to those who are remanded in custody. It would enable the court to obtain exactly the kind of assessment in relation to a person on bail that it would obtain if that person were remanded in custody.
	A realistic assessment of people while on bail may be easier to carry out when they are in their normal residential conditions—perhaps at home with a caring family—than if they have to be remanded in custody, which can be frightening and disorientating and is not always necessary for the person concerned. In addition, when there are remands in custody for reports, there are sometimes substantial delays, which cause real frustration to judges. Some of that frustration would be alleviated if defendants were remanded on bail for this purpose.
	I should perhaps declare the interest of being a Crown Court recorder and having many friends, associates and colleagues—some of them falling into all three categories—who are judges. I beg to move.

Earl Howe: I support the noble Lord, Lord Carlile, on this amendment. One thing to which he did not refer but which I think is worth mentioning is that the provision in the amendment was included in the 2002 and 2004 draft Mental Health Bills, so I very much hope that he is pushing at an open door here. I shall add just a couple of remarks.
	There is a strong belief within the Mental Health Alliance that this additional remand provision may help to reduce the number of remands in custody by the courts. That was implicit in everything that the noble Lord said. At the moment, a judge's only choice under the 1983 Act is between remanding the person in custody or in hospital, but the judge's ability to remand the person to hospital may be limited due to a lack of available hospital beds. Research also suggests that there is a culture of resistance towards accepting patients via the criminal justice system, partly because of the perception that such patients tend to be "more difficult" than others. So this amendment will help to provide the courts with an alternative and less restrictive course of action when dealing with people with mental health problems.

Lord Patel of Bradford: There is little to add to the compelling arguments made by the noble Lord, Lord Carlile, and the noble Earl, Lord Howe, so I shall be brief.
	As I am chairman of the Mental Health Act Commission, the body tasked with monitoring the 1983 Act on behalf of the Secretary of State, it may be helpful if I make some observations. While many aspects of the 2004 Mental Health Bill will not be missed, this one would be. As we have heard, the amendment would reintroduce what was Clause 86 of the 2004 Bill as an amendment to the 1983 Act. The Government clearly thought this measure worth while and included it in both the 2002 and 2004 Bills. I hope that they will accept this call to pick it up again now.
	In recent years, there has been something of a decline in the number of patients remanded to hospital for assessment under existing powers—under Section 35 of the 1983 Act. Official statistics from the Department of Health over the past decade show that the annual number of such remands more than halved in 2004 and 2005. Only 118 such hospital orders were made by the courts. By contrast, the remand population in prison continues to be more than 10,000 people. Among that population there is a high incidence of mental disorder. For every one person given a remand to psychiatric hospital directly from the courts, at least four people are transferred as remand prisoners, incarceration having been found unsuitable because of their mental condition.
	Of transferred remand prisoners, as with remand prisoners generally, it is not always the case that they are destined for custodial disposal, even to hospital. Although statistics do not tell us what happens to these patients, we can see that, once they have their day in court, something like one quarter of remand prisoners who are transferred to hospital under the Act's powers end up with some form of community disposal. In such a context, I am sure that the Minister will agree that all measures that might encourage the courts to avail themselves of the least restrictive option consonant with justice and public safety ought to be adopted. It would be helpful for the courts to survey the mental health legislation and see, among the options for mentally disordered offenders or accused persons, an option to remand on bail under the Mental Health Act 1983.

Lord Mackay of Clashfern: I have always been conscious of the difficulties that the criminal justice system faces in relation to people with mental incapacity and disorder. This seems a practical suggestion, and it is interesting that it appears to have been included in the two draft Bills already mentioned. I was wondering why the Government have dropped it from this measure.

Lord Hunt of Kings Heath: This has been a short introduction to the next group. Clearly there are important issues in relation to the mental health of people who fall within the criminal justice system. It is important to deal with people in the most effective way possible, including what happens in court and the relationship between prisoners and the mental health service. We shall debate some of those wider issues in the next group.
	Members of the Committee have commented that the amendment comes from the original 2004 Bill, and the noble and learned Lord asked why that provision is not in this Bill. The 2004 draft Bill contained a comprehensive chapter consolidating court powers to remand. This is but one aspect of that consolidating chapter. The Government took the decision in the light of the extraordinary public debate and the work done by the scrutiny committee, so ably led by the noble Lord, Lord Carlile, that we would not bring forward a comprehensive Bill, as proposed, but would focus on a number of issues amending the 1983 Act. It is worth saying that the 2004 Bill exercised many people's minds, but one of the messages that came from stakeholders was concern about its length and complexity. We ultimately decided to introduce a much shorter Bill, which has inevitably meant that some desirable aspects of the original Bill—although, as the noble Lord, Lord Patel, said, not every aspect commended itself to noble Lords—are not in this Bill. I know that noble Lords have cherry picked some amendments from the 2004 draft Bill, but that is essentially why this provision does not appear.
	There are two issues: first, what the law currently allows; and, secondly, what can be done to improve good practice. We have heard of instances where the system is not working and falls down, and there are clearly lessons to be learnt on how to improve it. The noble Lord referred to better case management, which seems an excellent way to describe it. As so often in mental health services, however, the solution is to improve management: to ensure that things are better organised and resources better deployed.
	The amendment would make explicit provision for the courts to require a medical report when remanding a defendant on bail. It would apply where the court had medical evidence suggesting a defendant was mentally disordered. This is unnecessary because the court is already required to take account of a defendant's mental state before sentencing, under Section 157 of the Criminal Justice Act 2003. It will often wish to order the defendant's admission to hospital to ensure that a report on their condition can be completed. Sometimes a court will be satisfied that a report can be effectively prepared with the defendant simply remanded on bail. That can already be done. Under the Bail Act 1976, a court may remand a defendant on bail and require his co-operation with any inquiry intended to inform the trial process. Courts do that, on occasion, when they need to obtain medical reports.
	The combined effect of the Bail Act and the 1983 Act is that courts have a wide range of powers to obtain medical reports on defendants, either following admission to hospital or on bail. There is also a problem in singling out this provision from the 2004 draft Bill, and confusion as to why that power would be moved from the Bail Act when we are not otherwise amending court powers to remand.
	I was interested in the views of the noble Lord, Lord Carlile, on how the system operates and case management. I am certainly prepared to look at this matter, not so much in terms of legislation but to see what can be done to improve the situation, if the noble Lord would care to communicate with me further.

Lord Carlile of Berriew: I am astonished and wretchedly depressed by the Minister's answer. As the noble Earl, Lord Howe, pointed out, legislation has twice been drafted including a provision of this kind.
	I do not see that a meeting with the Minister will ram this point home any further, but the amendment was introduced because it is clear that case management can be achieved only if the toolkit given to the judge contains the requisite tools. The Government are effectively saying precisely what judges find unattractive: fiddle your way around the edges of various provisions such as the Bail Act, and you may be able to find something into which we can fit a direction for a medical report of roughly this kind to be provided. That is not a good case management tool; it is like asking one to put in a screw with one's teeth.
	I simply do not understand why the Government are so reluctant to adopt a simple measure that they have twice thought necessary. The whole point, which I tried to point out but which the Minister did not answer, is that, because of new sentencing provisions, issues of risk and dangerousness are now at the top of the agenda in a huge number of cases in which they never featured before. This amendment—probably unchanged, as it appears to me to be very full—would enable the judge, without fiddling around the corners of the Bail Act, to ensure that such reports as were necessary could be made available.
	I appeal to the Minister—and I welcome his willingness to take another look at this—to examine the issue again, because it seems to me and to others who have been dealing with this point, and indeed to the Joint Committee, that it cannot be dealt with without legislation. So with a sense of frustration that I had hoped to avoid so early in the afternoon as this, and with the fervent hope that the Minister will have another look at the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carlile of Berriew: moved Amendment No. 29:
	After Clause 20 , insert the following new Clause—
	"Resolving disputes as to receiving hospitals
	(1) The 1983 Act is amended as follows.
	(2) In section 35 (remand to hospital for report on accused's mental condition), after subsection (4), insert—
	"(4A) Where a court has remanded an accused person under this section and hospital trusts cannot agree to which hospital a person should be sent, the Secretary of State shall resolve the dispute."
	(3) In section 36 (remand of accused person to hospital for treatment), after subsection (3), insert—
	"(3A) Where a court has remanded an accused person under this section and hospital trusts cannot agree to which hospital a person should be sent, the Secretary of State shall resolve the dispute.""

Lord Carlile of Berriew: This amendment, with which we are considering Amendment No. 30—and I have got that right this time—deals with common situations that arise in courts. It is a very common experience, and one that causes massive frustration and anger to judges, that disputes can arise as to which hospital an offender or person held on remand should be sent. Typically, as the committee commented at paragraph 263 about whether medium or maximum security is required, if the parties cannot reach agreement, in particular if the medical people involved and the hospitals cannot reach agreement, there is currently no means of resolving the matter.
	In the era when the celebrated Crown Court judge Sir Robin David QC was the senior judge on the Cheshire part of the Wales and Chester circuit of blessed memory, of which my noble friend Lord Hooson used to be a very distinguished leader, that judge used to refuse time and time again to pass sentence on a person appearing before him because he demanded that someone should decide who was going to provide the medical report. But sometimes Sir Robin and other judges—and I cite him only as a very distinguished example—used to be driven into the situation in which they were forced to make what they regarded as an inappropriate disposal, particularly by sentencing someone to imprisonment.
	The Joint Committee recommended that where a court wishes to send an offender or person on remand with a mental disorder to a hospital and hospital trusts cannot agree to which hospital the person should be sent, the Bill should contain the sort of statutory duty that Amendment No. 29 provides. This, therefore, is another case management issue. It is one in which the system is broke, it needs fixing and it is a simple measure to fix it. I hope, though I am beginning to doubt it, that there may be a chink of light shown in the door when the Minister comes to reply.
	Perhaps I may say a word about Amendment No. 30, although I am sure that the noble Earl, Lord Howe, will speak to that too. The 2004 draft Bill considered by the committee had as Clause 137 a clause that broadly replicated an existing provision—Section 47 of the Mental Health Act 1983. It is a well known provision that allows the Home Secretary to make a direction to transfer a prisoner or person on remand with a mental disorder to hospital for treatment. It is exercised too rarely in the judgment of people like me who visit prisons from time to time and become aware of the number of people in prison who might well justify such a transfer, but it is a very important power. The person concerned has to meet a number of conditions and the Secretary of State, who is not a medical practitioner generally, has to be of the opinion that it is in the public interest to make such a direction. The aim of this exercise is to ensure that a person who meets the relevant medical conditions should be transferred to hospital and that that transfer should be a duty on the Home Secretary.
	When I have discussed the matter with various people and stakeholders, the issue of resources has always arisen. I suspect that the provision is probably resource-neutral. The cost of keeping a mentally disordered person in prison is extremely high and is usually disruptive to the prison concerned because it involves moving staff away from their normal duties to deal with the prisoner. Hospitals are obviously more used to dealing with people with mental disorders of the general nature under discussion. I believe that the worst one could say about resources is that moving these people to hospitals, though it might require some shift of resources, would be resource-neutral. I beg to move.

Earl Howe: My name is attached to Amendments Nos. 29 and 30 and I associate myself fully with the remarks of the noble Lord, Lord Carlile. I want to speak in particular to Amendment No. 30. It reflects the widely held concern that prisoners with mental health problems are not receiving the specialist treatment that they need. On the Government's own figures, quoted last year by the Home Office Minister Fiona Mactaggart, 90 per cent of prisoners have at least one mental health disorder, including personality disorder, psychosis and neurosis. Most have common mental health problems such as depression and anxiety. A smaller proportion—although much bigger than average—have more severe problems such as schizophrenia or a personality disorder. Many have a combination of things wrong with them.
	Over many years, there has been a consistent policy of diverting mentally disordered offenders from prison to hospital. Despite that policy, we are still seeing persistently high numbers of offenders languishing in the prison system with their mental health needs unmet. The annual report of the Chief Inspector of Prisons in 2003 estimated that 41 per cent of prisoners in healthcare centres should have been in secure NHS accommodation. In 2004, it was discovered that at any one time at least 40 prisoners assessed as needing a transfer to hospital had been waiting more than three months for it to take place.
	There is a basic problem. The ethos and culture of prisons are not about health and therapy; they are primarily about containment. In many prisons, although not all, healthcare is not top of the list or anywhere near it. The bottom line is that prisons are not the place for people with mental health problems because they are unable to provide appropriate care. That cannot be right. Surely we believe that everyone in this country with a mental health problem, wherever they are—whether they are in the community or in the criminal justice system—deserves the same standard and quality of care.
	Let us imagine a prisoner suffering from a mental illness that is sufficiently serious to warrant a transfer to hospital. Under the 1983 Act the decision to transfer a patient lies with the Home Secretary. Section 47 states that the Home Secretary,
	"may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that that person be"
	transferred to a specified hospital. The problem with this provision is that it is very broadly worded. The courts have found that the Secretary of State is never obliged to act, even if he thinks that the necessary preconditions have been fulfilled.
	The fact is that Section 47 has not proved an effective mechanism for transferring prisoners with mental health problems to hospital for specialist care. It needs amending to something much tighter if the difficulties to which I have referred are to be overcome. So the amendment is proposing that where two responsible clinicians agree that a transfer to hospital is needed, the Home Secretary should be under a duty to order the patient's transfer. That was in fact a recommendation of the joint scrutiny committee chaired by the noble Lord.
	Up to now the Government have opposed the reform on the grounds that it would require the Home Secretary to direct a transfer irrespective of the merits of the individual case or the public interest. I am sorry that they take that view. I see in that argument the signs of exactly the problem to which I referred a minute ago: that where we have an administrative arm of the state—in this case the Home Office mental health unit, the main focus of which is on public protection rather than clinical matters—the whole thing becomes an exercise in how to maintain security and we get, typically, security overkill. The inevitable result is long delay, and, alongside that, the local PCT has to be strongly persuaded that it wants to spend its money on what it sees as an inappropriate admission. I suspect that the Minister has a note in his brief urging him to resist the amendment. I simply ask that he take a fresh look at it in the light of the problems that I have been talking about; not the least of which is that the law as we currently have it is letting down large numbers of individuals with sometimes acute and serious mental health needs.

Lord Patel of Bradford: My Lords, I speak to Amendment No. 29 and shall be extremely brief. Home Office circular 66/90 exhibits misplaced optimism in stating:
	"there is no longer any scope for disputes between Health Authorities as to responsibility"
	for providing a bed for remanded patients. There is indeed scope for disputes, and we are informed that they are frustrating the smooth working of the Act as a diversionary mechanism for mentally disordered offenders. To set a precedent in other legislation for the Secretary of State to arbitrate or, rather, rule over disputes between authorities about responsibility for individuals, the Government should take such powers here and put an end to such disputes. I support the amendment wholeheartedly.

Lord Hunt of Kings Heath: My Lords, this interesting debate has been short but extremely important. I do not underestimate the challenges with the current system nor the challenges that will be faced in the future. My dividing line with the noble Earl and the noble Lord is that many of the problems they have identified are problems of case management and practice, as the noble Lord suggested. A number of such amendments are seeking to include in the Bill issues that come down to effective management and provision of services at local level. I also believe that it is impractical to take away the Secretary of State's discretion, as is proposed, for example, in Amendment No. 30. The Secretary of State has to have discretion to consider all the matters involved, including those raised by the noble Earl, as well as the question of what facilities are available.
	I believe that finding the right hospital placement, which is extremely important, depends on good practice and local arrangements. I am doubtful about whether it would be wise to establish a mechanism whereby central government through the Secretary of State intervened in those decisions. Of course I understand that there are frustrations in the current system, but I say to noble Lords—and it is disappointing that this has not been remarked on—that there have been and are taking place considerable improvements in the health services provided to prisoners and the facilities for patients who are so transferred. The Government are working very hard with local health service commissioners and providers to ensure that the right facilities are available. There has been a significant increase in the availability of medium secure beds, from 2,380 in 2001 to 3,330 last year. We hope that that will ensure that beds can be found more easily for remand prisoners who are likely to need secure beds.
	I understand that there will be situations where there may be discussions and disagreements about whether a named hospital could provide the right level of security as well as the right treatment. I say in defence of those hospitals that they have to resist taking responsibility for patients for whom they do not believe they have a safe and appropriate service. But in the end, this matter has to be resolved through discussion at a local level.
	I invite the noble Lord to consider that if, because of the direction power he wishes to give the Secretary of State, the risk is that in these difficult situations it is possible that local health services will seek not to resolve issues as they do now but refer more and more decisions up to the Secretary of State, that would be very unsatisfactory. It is much better to engage with local health service providers, encourage the continued development of services that we are seeing and do everything we can to make sure there is the closest possible co-operation between the courts and the health service. I do not think that relying on a direction power of the Secretary of State is really a sensible way to resolve the problem.
	Amendment No. 30 is concerned with the treatment of offenders who have been sentenced to prison and then need to be transferred to hospital for specialist treatment. The noble Earl, Lord Howe, referred to Home Office figures showing that 90 per cent of people have a history of mental health and/or substance misuse problems. That is a huge challenge for the Prison Service and the health service. The Government have sought to meet that challenge by improving the state of the health services available to prisoners and the involvement of the health service in prison health services. The more we can do for prisoners' health within prison, the better the outcome will be when they leave prison, and problems can be dealt with much more quickly than has previously been the case.
	We have set up 102 mental health inreach teams in prisons. This year, for the first time, all prisons should have access to these services. There are 360 more whole-time equivalent staff employed on mental health inreach provision, exceeding the NHS planned commitment for 300 in post by the end of 2004. Money has been spent on investing over three years on mental health awareness training for prison officers. We are making nearly £20 million a year available for mental health inreach services.
	People who are mentally ill and too disturbed to remain in prison should ordinarily be transferred to hospital as soon as possible. Once a prison has notified the Home Secretary that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take steps to obtain medical advice and, if that advice supports transfer, to take reasonable steps to effect it. But he would not be required to act against evidence that no appropriate hospital place was available or that public safety or public confidence would be put at risk. That perfectly sensible, reasonable discretion has to be given to the Home Secretary.
	The role of medical practitioners, of course, is fundamental to determining the suitability of a prisoner for transfer to hospital, but the amendment would give any qualified medical practitioners the final say in directing the transfer of prisoners. That would not be sensible in the best interests of public protection and potential patients, or in the allocation of NHS resources. Surely it would be nonsensical if a doctor specified a hospital that does not have the capacity to receive the patient or was unable to do so without endangering other patients.
	This is, of course, a challenge. We are doing better and we will continue to improve in the future. But this situation cannot be resolved by the waving of a magic wand. The acceptance of a new clause will not deal with these problems overnight.

Lord Carlile of Berriew: I am grateful to the Minister for his customarily courteous and full reply to the amendments. As regards his reply to Amendment No. 30, I think the Government are ducking an issue which has faced us for many years. Our already overstuffed prisons are going to contain a higher and higher proportion of people who are mentally ill and we face the prospect that, within a few years, we will be using prisons as a surrogate for psychiatric hospitals. That position is not acceptable to me and my noble friends and, in my view, it ought not to be acceptable to the Government.

Lord Hunt of Kings Heath: Notwithstanding the challenges that we face, does the noble Lord concede that considerable progress has been made in recent years in starting to tackle these issues?

Lord Carlile of Berriew: I certainly accept that progress has been made, the most obvious being the transfer of responsibility for health in prisons to the National Health Service. But that has not produced a proportionate result in people who are mentally ill being transferred out of prison into mental health establishments. That is the issue I was addressing earlier and which leads me to the view that prisons will soon be a surrogate for psychiatric hospitals.
	In relation to Clause 29, I say, with great respect, that the Minister's last point was a false one. He is suggesting that if the Government were to accept the amendment, mental health trusts would go running to the Government and effectively pass the responsibility for decision-making to them. That misses the point of the amendment, which is designed to avoid a real situation that—despite whatever improvements there have been—arises in Crown Courts up and down England and Wales on a regular basis, certainly on a weekly basis, possibly on a daily basis.
	One of the aims of the amendment is to ensure that mental health trusts would understand clearly that they have a duty to respond to sound case management by judges. On the whole, judges exercise rational decisions about how to progress cases. If a judge requires a particular form of report relating to the mental condition of someone who is appearing before him but finds that that intention is frustrated by no hospital being made available to deal with that intention, then nothing less than compulsion on the National Health Service to answer the judge's questions is satisfactory. It would make for far better case management.

Lord Hunt of Kings Heath: I hope I can explain a little more why I thought it might lead to a perverse consequence. I would have thought the temptation for the courts would be to seek intervention from the Secretary of State on a large number of cases. The impact of that would be that the Secretary of State would in many cases be directing issues that, in the end, have to be resolved at a local level. I would be concerned about doing anything that took away the actual responsibility of the local mental health services to resolve those issues.

Lord Carlile of Berriew: The noble Lord really has missed the point. The idea that judges would expect any response from a request for intervention from any Secretary of State is, frankly, ridiculous. Judges know perfectly well that if they ask that sort of question, they are likely to receive nothing for a very long time.
	The aim of this exercise is that when a judge sees a potential Mental Health Act disposal but is frustrated by services to the extent that no one is prepared to provide the facilities for that disposal, it should be compulsory. I would have thought that was a simple and straightforward point. It is designed to meet what is now called the "overriding objective" in all criminal cases that there should be a just disposal of the case.
	I will withdraw the amendment, but in a sense of frustration, and in the hope that the Minister will look at this as a practical and simple question that could be answered without introducing that great swathe of changes to the law in the 2004 Bill in relation to the criminal justice system. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 30 not moved.]

Earl Howe: moved Amendment No. 31:
	After Clause 20, insert the following new Clause—
	"Warrant to search for and remove patients
	In section 135 of the 1983 Act for subsection (1)(a) and (b) substitute—
	"(a) may be in need of care or treatment for his mental disorder and is living in any place within the jurisdiction of the justice, (b) access to that place is necessary for the purpose of establishing whether or not he is in need of such care or treatment; and (c) it has not been possible to gain such access without a warrant"."

Earl Howe: Amendment No. 31 takes us into some outdated and antique corners of the law. Sometimes it is necessary for the police to obtain a warrant in order to gain access to someone who is believed to be suffering from a mental disorder and to be in need of care and treatment. Section 135 of the 1983 Act is intended to deal with that situation. However, it is quite obvious when you read the first subsection of it that it comes from a bygone age. It is based on the equivalent provisions in the Lunacy Act 1890 and the Mental Deficiency Act 1913, and neither its language nor its criteria reflect the world we live in today. The amendment would remove some pretty stigmatising and inappropriate language and bring the criteria in line with the rest of the Act. It would also make it clear that the provision should be invoked only when attempts to obtain access without a warrant, using non-forcible means, have failed.
	Non-forcible entry is the subject of Amendment No. 34, which is grouped here. It seeks to provide a right of non-forcible entry into private premises for an approved mental health worker, doctor, police officer and ambulance personnel where this is necessary in order to effect an assessment for possible compulsory action under the Act.
	I believe that the noble Baroness, Lady Barker, will be speaking in greater detail about the amendment. I simply record my full support for it. I beg to move.

Baroness Meacher: I endorse the comments made by the noble Earl, Lord Howe. As I understand it, the only way you can operate Section 135 on the ground is if the magistrates are willing to bend the law. I am sure the Minister would not wish to continue to put magistrates in that position. On that basis, I strongly support this fairly technical amendment.

Baroness Barker: I want to clarify the purpose of Amendment No. 31. As the noble Earl, Lord Howe, said, it concerns giving ASWs, AMHPs, police officers and ambulance crews vital access to carry out assessments. It is assumed that Section 115 of the 1983 Act gives that right, but that section applies only to the inspection of premises in which a person who is already known to be mentally disordered is living. In addition, in recent years it has become obvious that police forces are rather uncertain about their rights of entry into private premises without a warrant when they are requested to accompany an ASW. The comments of the noble Baroness, Lady Meacher, reflected that.
	The amendment clarifies the position. It is a small technical amendment which may appear rather inconsequential compared with the big issues that we have been debating, but it is probably one of the most important. I have debated this Bill outside the Chamber with many people. One of their biggest fears about mental health legislation is the way in which it plays out practically and, particularly, how it plays out in relation to ASBOs and people in their neighbourhoods who behave dangerously. They see the police being reluctant to take action. Although the amendment is very minor and somewhat technical, it covers an important public safety point that may be misconstrued. Therefore, I hope the Government will look on it with some sympathy.

Lord Patel of Bradford: I support Amendment No. 31. I believe that its merits are self-evident—the Minister should not require my intervention to see them. However, we have heard much in the course of our debates about the stigmatising effect of being made subject to the powers of the Mental Health Act. Here is an opportunity to include a small measure that could ease the stigma of the Act.
	The Mental Health Act Commission drew attention to the stigmatising language of Section 135 of the 1983 Act in its last biennial report to Parliament. The amendment seeks to render into modern language the current formulation of the criteria for a warrant, which at the moment contains the unnecessarily offensive notions of "mentally disordered persons" and,
	"kept otherwise than under proper control".
	If the Minister is minded to reject the amendment, I ask him what is "proper control" of a person suffering from a mental disorder, and who is entitled to exercise it. It seems to me that the notion of proper control is both outdated and inexact and should be replaced.
	As my noble friend Lady Murphy, an eminent historian of the history of psychiatry, knows better than I, and as the noble Earl, Lord Howe, has stated, the origins of many of the 1983 Act's provisions can be traced back to the Lunacy Acts of the 19th century, if not to older measures. The phrase "proper care and control" can be found in Section 13(3) of the Lunacy Act 1890.
	There is nothing necessarily wrong with the continuance of key powers in this way. After all, mental health legislation always serves the same basic purpose of determining rules about coercive interventions. However, it means that we have to be careful that we are not unwittingly perpetuating 19th century attitudes towards mental disorder. Many changes have been made to the wording of provisions as they have been translated from one Act to its successor over the past century. For example, we no longer have,
	"alleged lunatics wandering at large",
	as the 1890 Act would have them. That is a good example of a piece of Victoriana that now needs to be put aside.

Baroness Royall of Blaisdon: Amendments Nos. 31 and 34 concern a right of access to individuals in private premises. I shall deal first with Amendment No. 31.
	Under Section 135 of the 1983 Act, a magistrate can issue a warrant based on information supplied by an approved social worker—approved mental health professional—which authorises a police constable to enter premises, using force if necessary, to remove a mentally disordered person to a place of safety for assessment. The purpose of the assessment is to establish whether the person needs to be detained in hospital for assessment or treatment, or whether other arrangements need to be put in place for his treatment or care. When the police constable executes such a warrant, he must be accompanied by a doctor and an approved social worker—approved mental health professional. If the person is removed to a place of safety, he can be kept there for no more than 72 hours.
	I have sympathy with the intention of the amendment as outlined by the noble Earl, Lord Howe, which is to update the language of Section 135. I certainly accept that some of the existing wording, as the noble Lord, Lord Patel, described, is outdated, indeed stigmatising. However, the effect of the amendment may not be what noble Lords envisage. On the one hand, it would broaden the group of people to whom Section 135 could potentially apply. This is because it would dispense with the current criteria of neglect, ill-treatment, lack of proper control or an inability to care for oneself, and replace them with a condition that there should simply be an indication that the person was in need of care or treatment for a mental disorder. On the other hand, the amendment would narrow the circumstances in which the intervention of a police constable would be appropriate. This is because it specifically links the need for care or treatment to the person's mental disorder. Under the existing provision, the ill-treatment, neglect, lack of proper control or inability to care for oneself need not be linked to the existence of the mental disorder from which the person is suffering.
	The use of Section 135 involves a considerable interference in the mentally disordered person's home and family life. The noble Baronesses, Lady Meacher and Lady Barker, spoke about the uncertainty surrounding rights of entry, but I am not aware of any concerns that the Bill operates in such a way as to make it difficult to get help to people who appear to need it. It would not be desirable to amend it unless there is a compelling reason to do so. I am not convinced that Amendment No. 31 would result in an improvement for patients. Indeed, it may have unforeseen repercussions because of its material effect on the wording of Section 135. However, having listened to the views expressed today, I shall take away the amendment for further discussion, although I do not promise to move my position on it. I will discuss it further, because what was said about the wording being stigmatising is important.
	Amendment No. 34 would allow an approved mental health professional, and any other person whom they ask to accompany them, to enter any premises to interview a patient before deciding whether an application should be made to admit the patient to hospital under the Act. Section 115 of the 1983 Act already gives an AMHP the power to enter a patient's premises if they have a diagnosed mental disorder. Amendment No. 34 would provide a similar power where it is not clear that the patient has a mental disorder. Section 115 does not allow forcible entry, but nor would the power proposed by the amendments. However, as in the amendment, a person obstructing an AMHP using the power under Section 115 would be committing an offence.
	I have real concerns about a power that would allow an AMHP, and any other person that he or she identifies, to have the legal right to enter premises when there is no reliable evidence that the person has a mental disorder. Requiring a person to give entry to their home is a serious matter and it should not be allowed on the basis of insubstantial evidence of its necessity.
	If an AMHP needs entry to premises to interview a person without a diagnosed mental disorder, they can ask for permission to enter. This would clearly be the most appropriate and professional way to tackle the problem. If access is refused, and it is necessary to enter premises forcibly, a warrant can be sought from a justice of the peace under Section 135 of the 1983 Act, to which I referred earlier. The provisions of Section 115, in conjunction with those of Section 135, are sufficient to provide AMHPs with the powers that they need to enter premises for the purpose of interviewing a patient, while safeguarding the right to privacy of an individual, who may not even have a mental disorder.
	As I mentioned, this amendment would also give a police constable, a doctor or any other person whom the AMHP asks to accompany them the power to enter premises to support the AMHP in interviewing a patient. I recognise that at times an AMHP will need to enter premises where there may be a risk to themselves if they go unaccompanied—for example, when the patient is reported to be acting aggressively. However, there is already provision under Section 17(1)(e) of the Police and Criminal Evidence Act 1984 for a police constable to enter premises without a warrant if such action is required to save "life or limb" or to prevent "serious damage to property". Alternatively, a warrant could be sought under Section 135.
	We must strike a balance between enabling the professionals to carry out their functions in safety and the rights of an individual to privacy and security in their own home. I do not believe that it would be appropriate for a potentially wide range of people to have a right of entry to private premises on the say-so of an AMHP, without any evidence that a person has a mental disorder and without a warrant. I therefore ask noble Lords to reconsider the amendment.

Baroness Masham of Ilton: There is now a system of out-of-hours doctors at nights and weekends. Would the doctor who might be called on in this case, under the amendments, be an out-of-hours doctor?

Baroness Royall of Blaisdon: I shall have to seek guidance on that. It would seem logical, but I really do not know. I shall write to the noble Baroness and copy the letter to all noble Lords present.

Baroness Masham of Ilton: If that were the case, it should be in the doctor's contract, if it is not already.

Baroness Royall of Blaisdon: I will certainly take on board that point.

Earl Howe: I am grateful to the Minister for her response on Amendment No. 31. I hope that she will have a careful look at the wording. The noble Lord, Lord Patel, was entirely right to draw attention to that wording, which I did not read out. I am glad that he did, because I genuinely think that this is something that needs changing—if not in the precise way that we propose, then in a similar way.
	As for Amendment No. 34, I confess to being disappointed, since in recent years police forces are more and more uncertain about their right to enter private premises without a warrant when they are asked to accompany an approved social worker, either to protect the social worker or anyone else during the assessment, or to assist with an admission at a hospital. If there is confusion of that sort, we surely want to iron it out. It has resulted in a number of instances in which requests for help have been refused or warrants have been issued inappropriately under Section 135. The purpose of the amendment was to clarify the position. The intention was not to extend the rights of the police inappropriately. However, I note what the Minister said. Clearly, this is a matter that we shall need to consider. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williamson of Horton: moved Amendment No. 32:
	After Clause 20, insert the following new Clause—
	"Duty to inform nearest relatives of rights
	(1) Section 13 of the 1983 Act (duty of approved social workers to make applications for admission or guardianship) is amended as follows.
	(2) After subsection (5) insert—
	"(5A) After making an application for admission or guardianship, the approved mental health professional shall have a duty to take all practicable steps to inform the person (if any) appearing to be the nearest relative of the following rights within 7 days—
	(a) to apply for admission for assessment under section 11(1) above; (b) to apply for admission for treatment under section 11(1) above; (c) to apply for guardianship under section 11(1) above; (d) to be informed of an admission for assessment under section 11(3) above; (e) to object to an application for admission for treatment or a guardianship application under section 11(4)(a) above; (f) to be consulted before an admission for treatment or guardianship under section 11(4)(b) above; (g) to require a local authority to make arrangements for an approved social worker to consider the patient's case and to be given written reasons if an application is not made under section 13(4) above; (h) to discharge the patient from detention or guardianship under section 23(2) below; (i) to apply to the Mental Health Review Tribunal under section 66(1) below; (j) to be informed of the intended discharge of a patient under section 133(1) below; (k) to be involved in aftercare planning under section 117 below; and (l) to be furnished with a copy of information relating to community patients under section 25 of the Mental Health Act 2007.""

Lord Williamson of Horton: I assure the Minister that I do not move this amendment with a deep sense of frustration, which is a phrase that I have heard around the Committee today. Not at all! Monday was deep frustration day, but this is Wednesday.
	I recognise that if Amendment No. 40, which is grouped with Amendment No. 32, is agreed, the definition of "relative" and "nearest relative" would be amended, giving the patient the right to nominate, if he or she so wishes, a named person who could fulfil the role of nearest relative. But subject to that—and I realise that the noble Baronesses, Lady Barker and Lady Neuberger, will speak to Amendment No. 40 later—I shall concentrate on the substance of Amendment No. 32.
	The reason for this amendment is that nearest relatives are rarely aware of their important rights under the Mental Health Act 1983, which are one of the safeguards in relation to compulsory treatment. I am sure that the Minister shares my view that it is important that the duty to inform nearest relatives should work well and should always be respected. At present, no statutory body has responsibility for providing information to nearest relatives, so this amendment puts a specific duty on the approved mental health professional to take all practical steps to provide the information within seven days. I should perhaps declare that, last year, I was a nearest relative for quite a number of months, so I have a little personal experience of it.
	It may be thought that the list of points in the amendment is rather fulsome, but I wish to give the Minister the opportunity to comment on whether he views it as reasonable to cover them all and, if so, how best to achieve that. I beg to move.

Baroness Neuberger: I support what the noble Lord, Lord Williamson, has said, but I will speak to Amendment No. 40. In the 2004 Bill, the Government were going to allow patients to nominate someone to act as their nearest relative. One reason for that was that the nearest-relative provisions in the 1983 Act are quite complex—this is one of the commonest areas for mistakes around the Act. Also, the person who is the nearest relative is not necessarily the person who has been nominated by the patient. Given that the 2004 Bill was going to deal with this by allowing patients to nominate someone, it is rather a surprise to see now that the only change from the 1983 Act is to add the patient to the list of people who can apply to displace the nearest relative. That really is not good enough.
	First, what if the patient and the nearest relative do not get on? That has been known. In the Bill as drafted, the patient has to prove that the nearest relative is unsuitable. Suitability is rather a strange test to use, particularly where what might be going on is to do not with suitability but simply with an inability to get on—the two just do not like or possibly even trust each other. Secondly, in order to change the nearest relative, the patient has to go to court at a point where they are ill and, possibly, vulnerable, and may well be rather dependent on the nearest relative concerned. Thirdly, I am also considerably worried that the cost of applying to the court for this could be something like £500, which, for many of these patients, might well have to be found from their incapacity benefit, as they are largely living on that. So there are rather a lot of questions to be answered by the Minister on why the provisions in the 2004 Bill are not in this Bill.
	Another point worth making is that, in all the time that we have looked at the legislation before us, we on the Liberal Democrat Benches have been at pains to say that we think that public safety is important. If we want patients to really trust the system, we have to allow them to nominate the person whom they want to act as their nearest relative. We would argue that if they trust the system—and can make that nomination—they will feel more at ease within the system, which will be safer for all of us.

Lord Patel of Bradford: I add my support to Amendments Nos. 32 and 40, but I will speak mainly to the latter, as the noble Baroness did.
	Since 1997, the Mental Health Act Commission has highlighted distressing stories concerning patients and their families. The rigidity of the 1983 Act regarding the nearest relative has often meant that, in addition to the interference, however necessary, with their private lives, patients have also had to put up with professionals blundering, however reluctantly, into difficult or painful family dynamics. In some cases, this has placed people at risk. For example, in the case of JT, the European Court of Human Rights finally told the Government in 2003 that enough was enough. The rigidity of the Act has meant that adult patients who were estranged from their parents and alleged past abuse by one or other parental figure have had that estrangement curtailed by mental health professionals, because it was perceived to be a requirement of the law that the parents were automatically seen as the nearest relative.
	The identification of a patient's nearest relative through a hierarchical list without reference to the wishes of the patient, and without giving any choice to a patient who is mentally competent to exercise a choice, is both discriminatory and plain wrong. There is no compelling reason why patients who are detained or subject to any other coercion under the Mental Health Act powers should be subject to such blanket discrimination. The effect of this is to deprive them of choice in identifying a relative or friend with whom they want to be recognised as having a special relationship. All other patients in hospitals may nominate their next of kin; it is not imposed on them according to who the oldest and closest surviving relative is, or according to any other criteria, as long as they have the capacity to make a choice.
	I am pleased to note the amendments to the Mental Capacity Act that seek to provide safeguards for people who are incapable of giving consent. These affect any patient who retains the mental capacity to exercise a choice over the identification of their representative, whose powers and role reflect those of the nearest relative in many respects. Yet, in this Bill, the Government propose that patients will continue to have a nearest relative imposed on them, with the result that patients will be put in the invidious position of having to explain why that person is not suitable to act as the nearest relative. The draft code of practice states that,
	"a nearest relative cannot be rendered unsuitable on the basis that another person is deemed to be more suitable".
	That sits uncomfortably with the intent to address the unwarranted interference with patients' private lives, as identified in current law by the European Court of Human Rights.
	I am also concerned that the failure to recognise choice in the selection of the nearest relative may be even more exacerbated in the case of people from different ethnic and cultural backgrounds. In such situations, the risk to the patient can be further compounded if they do not speak English.
	Whatever the circumstances, this surely will not do. We have waited six years since the Government settled a legal challenge out of court by promising action on this matter. After all that time, it is debatable whether the Government's current proposals even address the outstanding incompatibility of the law on this with Article 8 of the European Convention on Human Rights. This law is discriminatory and the Government's proposal to loosen it is discriminatory. Frankly, it astounds me that here, again, is an example where better provisions are proposed under the Mental Capacity Act for Bournewood patients than will exist for people affected by the Mental Health Act.
	The amendment would do what the Government should have done a long time ago, by giving priority to a competent patient's wishes over the inappropriate and outdated hierarchical list currently used to identify nearest relatives. I do not know why the Government have resisted for so long this apparently straightforward solution to the problem. If the Minister is minded to reject the amendment, I would be very interested to hear how he will explain what the difficulty is.

Baroness Murphy: I support the amendment proposed by the noble Lord, Lord Williamson of Horton. All he is really asking for is that the nearest relative or carer, who is often ignored until the patient is to be discharged, should have a serious conversation about what has happened and what their rights are. That seems to be entirely practical and gives patients' relatives, who have serious responsibilities under the legislation, some statutory involvement.
	The business of the nearest relative is a complete nightmare. If you section someone in London who is looked after by their brother next door but has an older brother in Edinburgh, the brother in Edinburgh is classified as the nearest relative. It is as simple and as stupid as that. You have a long list that you carry around in your pocket, which you tick off to identify the nearest relative. Social workers have found that a nightmare and it is about time that it was changed.
	I know that there has always been anxiety over those patients who nominate the next eccentric person on the ward as their nearest relative. That happens in special hospitals all the time; they say, "I will have that one", or they choose the next person through the door who offers the next set of drugs that they would like. We have included in the amendment a clear way around this, so that it cannot happen. The nearest relative has to be someone who is seriously involved in the patient's care. We now have a flexible approach to recognising what is a family and who is the next of kin. That is the case when you go into hospital for anything else, so why not for our patients?

Lord Hunt of Kings Heath: It has been a very interesting debate. The noble Lord, Lord Williamson—who I am delighted to hear is not frustrated so far today; we will see what we can do—and the noble Baroness, Lady Neuberger, have asked for detail on this matter, and I am glad to respond. The noble Baroness, Lady Murphy, put her finger on it when she asked why the Government are continuing with the concept of the nearest relative. I shall talk about that shortly.
	The role of nearest relative is an important one, enshrined in legislation. It has important rights and powers which provide significant patient safeguards. It is my responsibility to explain why the Government have decided, in the context of this legislation rather than the 2004 draft Bill, to retain the concept. The concept of the nearest relative provides an independent counterbalance to the authority and powers of the approved mental health professional to detain a patient and compel him or her to stay in hospital. Where the AMHP is considering the admission of a patient, the nearest relative must be involved where it is practical to do so. If the patient is to be admitted for an assessment, the nearest relative is to be advised of this. If the admission to hospital is for the treatment of a patient under Section 3, they are given the opportunity to object. When they object, the admission cannot proceed. The nearest relative can also object to an application for guardianship.
	As the code of practice makes clear, the AMHP must provide the nearest relative, before he or she exercises what on any count is an important power, with any information about the patient that the nearest relative needs to make an informed decision about whether they wish to object. Guidance in the code states that where a local authority is asked by the nearest relative to apply for admission of the patient but the local authority, based on the AMHP's consideration of the case, does not do so, the local authority will inform the nearest relative of that fact. It will also advise him that he can make his own application. There can be no doubt whatever that the nearest relative should be informed of his right to apply for admission of the patient at this early point. The Act already provides that nearest relatives are consulted, notified and advised of their right to object to an admission for treatment, even before any application for admission is made—not after the admission, as in the amendment.
	The duty to provide information to the nearest relative after the patient has been admitted currently falls on hospital managers. We think that that is the right thing to do. The individual AMHP, who provides the assessment and applies for admission of the patient, may not necessarily have a future role in the care and treatment of that patient. Requiring the AMHP to perform this function might often be inappropriate. Except where the patient objects, the nearest relative is to receive a copy of the information provided to the patient, and this will include that the patient can be discharged by his nearest relative. My department has produced a template leaflet that hospital managers can use or adapt which is specifically addressed to the nearest relative about his rights.
	I also refer noble Lords to paragraph 30 of Schedule 3 to the Bill. This introduces a new Section 132A to the Act providing for hospital managers to inform patients of the effect of a community treatment order whenever a patient is placed on to supervised community treatment. We will discuss such treatment in a moment. This information will be shared with the nearest relative—again, subject to the consent of the patient. We believe that that is consistent with the existing provisions for sharing information with the nearest relative at the time of admission and at the time of discharge.
	One problem that we have with the amendment of the noble Lord, Lord Williamson, is that it shows no such caveat allowing a patient to object to personal information being shared with the nearest relative. We consider that to be a problem in relation to confidentiality and privacy. Obviously, there will be times when impracticability provides that an unsuitable nearest relative who has not been displaced need not be consulted. In addition, the patient can currently prevent his nearest relative being given information at the time of his admission. However, the noble Lord's amendment would provide no such privacy or protection to the patient in those circumstances. We think that the Act provides sufficient and appropriate provisions for the nearest relative to receive information about his powers when it is needed.
	Clearly, there is an issue of practice, and that is what we think the code of practice exists to do. The code is still in draft, so we are welcoming suggestions and clearly the debate in your Lordships' House will also heavily influence the wording of the draft code. We think that that is the best way to deal with that problem.
	I turn to Amendment No. 40, to which the noble Baroness, Lady Neuberger, spoke. In the majority of cases, her amendment would place the powers of the nearest relative in the hands of a patient-nominated representative. However, we think that it is inappropriate for a patient nominee to exercise the powers of the nearest relative under the Act. As I have just explained, the powers of nearest relatives mean that they are not just patient representatives, although most nearest relatives very effectively represent their patient relatives. I know that the noble Baroness referred to the intention of the 2004 Bill, but of course that Bill did not replicate the nearest relative at all. Introducing an independent legal body which authorised compulsion changed the whole business of compulsion. We considered then that there was no longer a need for an independent counterbalancing role, as exercised by the nearest relative. Given that we have constructed this Bill to be incorporated within the essential framework of the 1983 Act, we think that the independent relative continues to have a valid role.
	We also think that, in order to exercise his power, the nearest relative must be free to act in a way that represents his understanding of the best interests of the patient. Sometimes that might mean that the nearest relative will use, or not use, his powers in ways that do not concur with the wishes of the patient. Of course, many people chosen by the patient would feel duty-bound to act in the way that the patient wished, but the powers of the nearest relative have not been designed to work in that way.
	The noble Baroness, Lady Murphy, raised a point about the safeguard. I think she said that the person chosen must know about the patient; it cannot be a frivolous choice. None the less, someone might be chosen who will simply carry out the wishes of the patient. Given the role, the nearest relative needs to be able to act, as I said, in a way that represents their understanding of the patient's best interests and not simply to carry out the patient's wishes. That is the problem with the second amendment.

Baroness Barker: Will the Minister explain why that should be the case in mental health treatment any more than it is in any other form of health treatment? Like many others, I have been involved with the care decisions of people on life-sustaining and life-threatening treatment. Why is there any more reason to believe that a person nominated by someone subject to mental health legislation would be any more likely not to act in the best interests of the patient? I do not follow the Minister's argument.

Lord Hunt of Kings Heath: This has been a consistent part of mental health legislation usage, and the circumstances particularly relate to people with severe mental health issues. It is an appropriate safeguard for both the public and the patient.

Baroness Neuberger: Why has the Minister not taken on board the extent to which family dynamics can affect the issue? As my noble friend Lady Barker said, there is an important point of principle regarding why patients with mental illness should be treated differently. But there is also a point about families and family dynamics, which often come to the fore in cases of mental illness. The noble Lord is assuming that different circumstances apply here, but I fail to see how he has made that argument. There is a further point. We have occasionally been quoting the Scottish legislation with approbation. The right of choice is in that legislation.

Lord Hunt of Kings Heath: The context in which both the Scottish legislation and the 2004 Bill operate is entirely different from the framework that is set out in the 1983 legislation. We have decided to stick with the essential framework of the 1983 legislation in the amendments that we have now put in place.
	I turn to the Bill's provisions allowing patients to apply to the courts for the displacement of the nearest relative. It is worth making clear that they will be able to make such applications on all the existing grounds as well as on the new grounds that the nearest relative is not a suitable person to act as such. This is an important balance to the debate that we have just had. It will be for the court to determine whether a nearest relative is otherwise not a suitable person to act as such.
	It would be helpful if I outlined what the Government have in mind in establishing this ground for displacement. We do not believe that a person is unsuitable to be the patient's nearest relative simply because the patient may be upset with the nearest relative over a trivial matter. We know that suffering with mental disorder is often a distressing and difficult time for the patient and that it is no less so for those who love and care for the patient. In that environment there can be potential for disagreement between a patient who may not wish to go to hospital, for example, and the nearest relative who reluctantly accepts that that is the best course of action. Such a disagreement should not in itself be grounds for removing important powers from the nearest relative.
	We have in mind situations where a nearest relative's occupation of that role and its powers under the Act poses a real and present danger to the health or well-being of the patient. Where a nearest relative has abused the patient, for instance, he should not be allowed to exercise the rights of the nearest relative. It is not important how recently the abuse took place. If the patient or others who know or are close to the patient have a genuine fear that the abuse may be repeated—or even that a relationship with a formerly abusive nearest relative may cause the patient distress—we intend that such a person should be considered unsuitable to act as the nearest relative of the patient. These applications will be heard, as they now are, in the county court. The court will not be asked to sit in judgment of any of the past actions or deeds of the nearest relative. Its role will be to determine whether the nearest relative is otherwise unsuitable to act as such.
	The opinions and views of the patient will be very important and we fully expect that they will form part of the court's deliberations. However, we do not wish the court to feel that it is prevented from displacing a nearest relative it deems unsuitable, even where the patient would wish that person to remain as their nearest relative. I would instance cases where the victim of an abuser actually acts to protect the abuser, either out of fear of the abuser or through a form of identification with him. We do not wish the court to feel constrained in such circumstances in displacing a nearest relative it finds unsuitable.
	The noble Baroness, Lady Neuberger, mentioned the issue of cost. The regulatory impact assessment sets out the cost, and legal aid would be available. I hope that meets some of her concerns.
	I have covered a lot of the ground on patients' relatives. I hope noble Lords will understand that the Government's position is that the nearest relative continues to form an important role. It is clearly important that they are informed in the way described. The legislation, backed by the code, will allow that to happen. But there is a distinctive role for the nearest relative.

Baroness Masham of Ilton: To clarify, does "nearest relative" include a husband, wife or partner?

Lord Hunt of Kings Heath: I refer the noble Baroness to Section 26 of the 1983 Act, which says:
	"In this Part of this Act 'relative' means any of the following persons: -
	(a) husband or wife;
	(b) son or daughter;(c) father or mother;(d) brother or sister;(e) grandparent;(f) grandchild;(g) uncle or aunt;(h) nephew or niece".
	It goes on to give other examples.

Lord Williamson of Horton: I am grateful to the Minister for his reply. Although the two amendments are different, he covered the points quite clearly. My amendment was headed "Duty to inform", which is the point that I was raising. I recognise that, as he said, some of the points listed in the amendment may not be appropriate for the approved mental health professional—the reference to local authorities, for example. I also accept that it would be possible to achieve what I want by the strict operation of a code of practice. My objective is to make sure that that happens. On Amendment No. 40, I am sure—given the strong views expressed—that the noble Baronesses, Lady Barker and Lady Neuberger, will reflect on what has been said. That is a matter for them. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 33:
	After Clause 20, insert the following new Clause—
	"Effect of application for admission
	In section 6(1) of the 1983 Act—
	(a) for all references to "applicant" substitute "NHS trust responsible for hospital provision"; and (b) for "convey him to the hospital" substitute "convey him to the hospital identified by the trust as being able to receive him"."

Earl Howe: This amendment brings us back to the process involved in admitting a mental health patient to hospital and focuses on a real difficulty that is often encountered. Under the present Act, the approved social worker is personally responsible for the custody and transporting of the patient, which of course carries with it a responsibility for the patient's safety and the safety of anyone else with whom they come into contact until they are finally accepted on to a hospital ward. However, quite often there are difficulties in getting prompt or adequate assistance from police and ambulance staff. Not uncommonly, beds are scarce, with offers of beds being withdrawn when the patient is brought to the hospital. In those sorts of situation, the ASW is extremely exposed, both personally and legally.
	The converse of this is that, because trusts do not become legally responsible for the patient until he or she is actually received on to a ward, there is little pressure or incentive on management to resolve the difficulties. The amendment would transfer legal responsibility from the approved mental health professional to the trust from the moment the application is signed. It would also provide for the application to be made to the trust rather than to a named hospital, which would prevent the application from being invalidated if it was necessary to admit the patient to a hospital other than the one originally planned. It is perhaps worth adding that this need not affect the way in which an admission is carried out. The trust could appoint the approved mental health professional as its agent and then authorise him or her to convey under Section 6(1), but the key point is that the trust would remain ultimately responsible in law. I beg to move.

Baroness Meacher: As the chairman of a mental health trust, I am very aware of the difficult position in which approved social workers in this process of detention find themselves under the Mental Health Act. I endorse the comments made by the noble Earl, Lord Howe, many of which I would have made but now will not do so.
	One of the main issues is that police and ambulance personnel do not have unlimited time. Police officers are often under pressure to move on to another commitment, yet their presence is absolutely essential in most of these cases, if they are called at all, to ensure the safety of the patient and of the professionals involved.
	As the noble Earl, Lord Howe, said—the Mental Health Alliance has made this point strongly, too—beds are incredibly scarce these days. We are increasingly facing the situation where all this work is being done—two medical recommendations are obtained, and the doctors, ambulance staff and police are there—but no bed is available. It is not difficult to imagine the position of the approved social worker, fairly junior in the hierarchy, with this undoubtedly very disturbed patient in an ambulance, kicking around and making life difficult for everybody through no fault of their own, having nowhere to go. That is the position that we are faced with.
	Amendment No. 33A makes some constructive proposals on the role of the primary care trust. However, nothing is ever as straightforward as it seems. In speaking to these amendments, I make it clear that, particularly in the new world of foundation trusts, the question of a trust's financial responsibility for a patient becomes an issue. If responsibility is transferred from an ASW to a trust, as I believe it should be, it will need to be made very clear, probably in regulations, that the relevant commissioning bodies—currently primary care trusts, but we do not know what they will be in the future—will have to be responsible for commissioning services to cover patients detained by one trust when in fact they are the responsibility of another.
	Let me give an example. A patient from Cumbria may come down to London for the weekend and find themselves in an A&E department and placed under section. It may not be feasible to transfer that person back to Cumbria immediately. The local trust will need to be reimbursed with the cost of detaining the patient—if that is what happens—until the transfer can be arranged.
	I do not want to take up more of the Committee's time. I say only that I strongly support the principle of placing with a trust the responsibility for, in particular, the custody of someone in the difficult position of having been detained. However, I want to make it clear that I understand that that is not entirely straightforward and that regulations would be needed to work out a method of dealing with these issues, in particular the financial ones.

Baroness Gardner of Parkes: I shall speak to Amendment No. 33A. I had not intended to take part in this Bill as I consider that I know nothing about mental health and the arrangements. However, I was prevailed on by various social workers who felt that it contained gaps and that this was one of them. I undertook to support the amendment on the basis that the noble Baroness, Lady Finlay, or the noble Baroness, Lady Meacher, would take it over. I found the noble Baroness, Lady Finlay, first and she agreed to speak to it. However, she cannot be here today and has passed the responsibility to me with a heap more points that she has worked out and that I would never have known about. I am afraid that noble Lords will therefore have to listen to her comments.
	I cannot see that the principle is very different from that in Amendment No. 30 tabled by the noble Earl, Lord Howe. We are both aiming at the same thing and the idea is to put the matter before the Committee for consideration. Why is the provision needed? The code of practice exhorts the relevant authorities to agree joint policies and procedures at a local level, but the degree of co-operation is variable. Even where agreements exist, they are often ineffective in practice as they are purely voluntary and tend to be overridden by other operational priorities. The amendment would put these voluntary arrangements on a statutory basis in a form capable of being monitored by the relevant performance review mechanisms.
	I quote from an approved social worker:
	"Our trust is in breach of Section 140. We can try and arrange a bed in advance but on a regular basis they are withdrawn. We have been refused access to wards, with a patient in our custody, because the bed previously identified as available was no longer available. We have no default position. The trust will not identify a site to which we may bring our detained patients in an emergency".
	Despite the duty on the primary care trust to let local social service departments know where urgent cases should be taken, few perform it. This leaves users, carers, professionals and the public at risk in volatile and difficult situations with no bed available and nowhere to go with a distressed, unwell patient.
	Last year, a survey by the Association of Directors of Social Services into the approved social worker service found that nearly 60 per cent of local areas reported problems with accessing police and ambulance support. Indeed, the noble Baroness, Lady Meacher, referred to that. More worryingly, a significant number reported that the more serious the case, the longer the delay might be. A current survey of approved social worker needs in London found that assessments needing tactical or firearms officers can sometimes be booked only on alternate weeks and can be cancelled at short notice.
	There are many committed officers, including at senior level, in both the police and ambulance services. However, when operational procedures change, too often little thought is given to the impact on mental health. Support to mental health therefore becomes rationed to some specified times or days. Yet such delays can result in the patient deteriorating and presenting an escalating risk to others.
	In some areas, the ambulance will not attend unless the police are present, occasionally even when they are not needed, leaving the approved social worker with a patient becoming increasingly agitated and distressed. One recent example was of a four-hour wait which meant that the detained person absconded and could not be found for several days. Worryingly, such delays may affect people from ethnic minorities disproportionately. Some social workers have even reported delays running into weeks from the time when a request for an assessment that needs police presence is made to the time when such an assessment has been successfully completed.
	Imaginative solutions may need to be considered. For example, one mental health trust has a "total transport policy", which includes the transporting to hospital of most patients detained under the Mental Health Act, thus avoiding delays and preventing ambulances from being tied up unnecessarily. Equally innovative policies with the police may need to be considered. Only a small number of the assessments that approved social workers undertake each year need the support of the police and an even smaller number need the response of armed units. Yet when they do it is essential for all concerned that the support is available swiftly and in a way that is appropriate to the needs of the service user, their family and public safety. Timely interventions prevent situations that place people at unnecessary risk and decrease the possibility of patients being picked up by the police because they have gone on to offend.
	Conflicts between services around conveyance arise too often, leaving the approved worker trying to negotiate between the ambulance and police services. The amendment, coupled with the amendment to Section 6(1) in the names of the noble Baroness, Lady Meacher, and others, is designed to ensure that the issue is given appropriate weight and authority to ensure that the current problems experienced around the country are resolved as far as humanly possible. I place those facts before the Committee and it is for the Government to view the matter in the light of the comments made on the amendments and the Bill.

Baroness Royall of Blaisdon: Amendments Nos. 33 and 33A both address how local services work together to ensure patients' safe and efficient admission to hospital, including patients requiring urgent admission. Amendment No. 33 concerns the responsibility for conveying to hospital a patient who is admitted under the Mental Health Act. The Bill leaves that responsibility with the person who made the application for the patient's admission. That will almost always be an approved social worker or, in future, the AMHP.
	Amendment No. 33 would transfer responsibility for conveying the patient to hospital from the AMHP and place it with the NHS trust or someone authorised by the trust that contains the hospital to which the AMHP has made the application for admission. Currently, a patient for whom an application has been made is the responsibility of a named individual—the ASW—until they are admitted to a hospital. The Bill places accountability with another named individual, the AMHP. However, if we place the responsibility for conveying a patient with an NHS trust, we lose that individual responsibility and I fear that it will become more likely that a patient will not be safely conveyed to hospital, although I recognise the concerns expressed by the noble Earl, Lord Howe, about the responsibility placed on the ASWs. That does not seem desirable when the system that we have now better ensures the patient's safe passage to hospital.
	Any problem with the trust's processes that results in a failure to ensure the patient's proper conveyance could place the patient or others at risk of harm or neglect. It is therefore essential that we ensure a robust system with clear lines of personal accountability, which is what the Bill provides for in the form of an AMHP. The skills that an AMHP brings will be well suited to the job of conveying a patient in the least distressing manner, rooted as they are in a holistic perspective of patients' needs. AMHPs will be highly trained in their role. The AMHP attends the patient to assess them before making the application, so they are normally already with the patient and should have already established a relationship with the patient. If the responsibility for conveying the patient lies with the trust-appointed person, there may be delays in identifying that person and waiting for them to arrive.

Baroness Meacher: There is no suggestion in the amendment that there would be a change in the method or process. The AMHP, or the ASW at the moment, would still be the person responsible, and they will have the appropriate skills; there is no question about that. The problem is the availability for hours at a time of the police and ambulance services. They are not available indefinitely, so the AMHP or ASW is in an impossible position. We are not questioning anyone's skills; we are pointing out the realities out there and the fact that we need someone with some power—that is, the trust—and some funding for the arrangement to work in practice, otherwise we are leaving people in a difficult position.

Baroness Royall of Blaisdon: I understand that position and will come back to it. Essentially, we believe that these are service issues which need to be addressed, and while we all want to ensure that all patients and AMHPs have the services that are necessary available to them when they need them, we believe that it is not appropriate to address those issues through legislation.
	The noble Earl, Lord Howe, suggested that the trust could appoint an AMHP as an agent. But if an AMHP is given responsibility for conveying by the trust, nothing would be different from the position at present. There would be the same requirement for them to secure services, such as from the ambulance service, police service and bed manager. Good local protocols setting out how these services will co-operate will still be key.
	More substantively, the Bill allows an application to be made for a patient's admission only if there is appropriate treatment available. That is extremely important. I therefore believe it is right that if the appropriate treatment is available in a particular hospital, the application should be made to that hospital, not to any in the trust that may or may not be able to provide appropriate treatment.
	The amendment is intended to address the important issue of the extent to which ASWs can rely on the co-operation of a trust in admitting a patient. I understand that a breakdown in this co-operation can result in unnecessary delays in securing a bed or an ambulance if one is needed, leading to distress for the patient and often their family, and avoidable difficulties for the ASW. The amendment seeks to address this by transferring the legal responsibility for conveying and admitting a patient to the trust. Of course I sympathise with the concerns that the amendment reflects, but I do not believe that a legal solution is the answer. It is a matter of good practice. General provisions under the National Health Service Act 1977 already require NHS bodies to co-operate with local authorities. None the less, despite this legal requirement, I acknowledge that ASWs can have problems accessing trust resources.
	I hear all that noble Lords have said about the level of local delivery. It has been said before in this House that it is not appropriate to legislate centrally for local arrangements, and I agree with that view. What is needed here is better communication between trusts and local authorities and agreed protocols. It is not the Government's place to say what these local arrangements should be. However, I will consider whether the codes of practice can be strengthened—I am sure that they can be—to make clear the duty on trusts to co-operate with AMHPs in providing an effective service for conveying and admitting patients in their area.
	Amendment No. 33A would replace Section 140 of the Act, which currently provides that a primary care trust in England or a local health board in Wales must advise the local authority of all the hospitals that accept patients as urgent cases for the treatment of mental disorder. The amendment would replace the existing section with one that provides for a much wider-reaching duty. It provides for a duty on the PCT to work co-operatively with the police, local authorities, the ambulance service and NHS hospitals that provide in-patient services to develop and publish a protocol that covers a wide range of practice issues. It provides that such protocols must cover maximum response times for trusts, the police and ambulance services in urgent cases, arrangements for obtaining a bed and prioritising cases, conveying a patient safely to hospital, assessing urgent cases and ensuring the safety of all those involved.
	The amendment describes what should be good practice. Throughout England and Wales, the police, local authorities, health authorities and trusts, including the ambulance services, have in place protocols and local agreements to address these issues. I understand that there are enormous pressures on services and that in some areas of the country there are concerns about local services co-operating effectively to ensure the safe and efficient admission of patients to hospital. Various surveys have been referred to, but, as I said in the context of Amendment No. 33, I do not think that legislation is the correct place to address these issues.
	While we agree that it is good practice to develop, agree and publish local protocols such as those detailed in this amendment, the code of practice already provides guidance on this matter. As the noble Baroness, Lady Gardner of Parkes, explained, the code makes it clear that authorities should have joint policies and procedures on the conveyance of patients and that health authorities, trusts and local authorities should co-operate in ensuring that professionals meet regularly to promote understanding and to address issues. It also calls on social services authorities, health authorities and chief constables to establish policies for the removal of patients to places of safety. The code of practice states that local protocols on these matters should be in place, but it does not specify the details of what the protocols should contain. The protocols must be kept up to date to reflect changes taking place, as the noble Baroness said. We believe that it is right that the details of local arrangements should be a matter for local decision, taking account of local circumstances, and that they should not be dictated by central government. We therefore do not believe it necessary to include them in statute.
	The issues raised in this debate must be addressed properly to ensure that services are available. However, we do not believe that the right way to address these practice issues is through legislation. We have to change practices, but that is a matter of ensuring proper implementation. In many ways, that is a matter of changing culture so that mental health services are no longer seen as Cinderella services and so that the urgency of mental health cases is properly addressed. I ask the noble Earl to withdraw his amendment.

Earl Howe: We are under a self-imposed time constraint, so I do not propose to reply at length. I thank noble Lords who have taken part in this debate and I thank the Minister for her reply. I wish that we could get away from the myth that the Bill has nothing to do with service issues. It seems to me that the whole of Chapter 2 relates to service issues and the expansion of professional roles. We cannot get away from the improvement of services, and I do not accept that as a valid pretext for rejecting amendment after amendment. Nevertheless, I heard what the Minister said about considering how the code of practice might be beefed up to address the problems that we all acknowledge exist in this area. I hope that she and her officials will be able to do that. Between now and the next stage of the Bill, I shall consider carefully whether this is a matter on which we shall need to return. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 33A not moved.]
	Schedule 2 [Approved mental health professionals: further amendments to 1983 Act]:

Baroness Gardner of Parkes: moved Amendment No. 33B:
	Schedule 2, page 46, line 9, leave out "on their behalf" and insert "within a reasonable time having regard to the circumstances of the case"

Baroness Gardner of Parkes: This amendment concerns the duty of approved mental health professionals in applications for admission or guardianship. It has two purposes. The first purpose is to guarantee the legal independence of the approved worker. That person is currently an approved social worker and under the new remit will be an approved mental health practitioner. The second purpose is to ensure that there is a duty on the local social services authority to provide an AMHP to undertake an assessment within a reasonable time.
	The independence of the approved mental health professional is essential to the process of assessment. While two doctors or approved clinicians can, under the Bill, recommend admission, unless the AMHP agrees that there is no less restrictive way of providing the care or treatment needed, they can refuse to make an application and prevent compulsory admission. It is essential that AMHPs are able to make their decisions independently and free from even the slightest hint of being obligated to apply under pressure from some other body or person. They should, like the current approved social workers, be classed as an independent public body in law.
	The current wording of the Bill compromises this independence by implying that the AMHP will be working "on behalf of" or "at the behest of" the local authority, with the implication that his or her decisions can be countermanded by the authority and influenced by the interests of the authority, which may be different from the interests of the patient. The amendment clarifies the point by making it clear that the approved mental health professional is expected to make an independent assessment of the person's health and social care needs and carries individual responsibility for their decision, not that the local authority can direct that decision.
	As regards the second issue, the noble Baroness, Lady Howarth, has already suggested that the wording of the amendment would be improved if it stated,
	"to make an independent assessment",
	but she thinks that the part about,
	"within a reasonable time having regard to the circumstances of the case",
	does not mean anything. But social workers believe that it might help them to cover cases which take an exceptional amount of time.
	This will ensure not only the independence of the assessor but also the availability of an AMHP at short notice, if necessary, and around the clock. The present Act requires local authorities to provide "a sufficient number" of approved social workers, but this duty has been widely disregarded. A recent survey funded by the Department of Health shows that there is currently almost a tenfold difference between the best and worst performing authorities in the number of ASWs they employ per head of the population. I beg to move.

Baroness Royall of Blaisdon: Amendment No. 33B seeks to amend Section 13 of the Mental Health Act which deals with approved social workers—under the Bill, AMHPs—making applications for a patient's admission under the Act. The amendment removes the requirement for the AMHP to be acting on behalf of a local social services authority, LSSA. It also introduces a requirement that the assessment should be carried out within a reasonable time having regard to the circumstances of the case.
	The Government are concerned to ensure that the case of a patient who may need to be admitted under the Act is assessed by an AMHP within a reasonable time. However, where a statutory duty is not carried out within a reasonable time it is already the case that this is likely to constitute a breach of that duty. Therefore, the duty to arrange for an AMHP to consider a patient's case for application already implicitly includes the duty for a local authority to do so within a reasonable time. This will be explicitly highlighted in the codes of practice for England and Wales and we do not believe that additional legislation is needed to achieve the effect that the noble Baroness is seeking.
	The second aspect of Amendment No. 33B would remove the requirement for an AMHP to act on behalf of a local authority when considering a patient's case for admission. I note the concerns expressed by the noble Baroness that if an AMHP is said to be acting on behalf of an LSSA, the LSSA could in some way direct the decisions of the AMHP. But this is not the case. An AMHP is required to make an independent decision about whether to make an application. I can assure your Lordships that nothing in the Bill changes this.
	Paragraph 5(2) of Schedule 2 to the Bill makes it clear that AMHPs must make an application only if they are personally satisfied that it is necessary and proper so to do. The decision cannot be overturned by the local social services authority for which they are acting. The AMHP acts independently and will continue to do so in their decision-making.
	The Bill makes it clear that an AMHP carries out its functions on behalf of the LSSA. This underlines the independence of the AMHP from the trust that may employ the doctors who also examine a patient's case for admission. It also ensures that the responsibility for providing that an AMHP service is in place still clearly lies with the local social services authority, whether or not it chooses to enter into arrangements with another body, such as a trust, to provide the service.
	I hope your Lordships will agree that it is important that we maintain this line of responsibility to the local social services authority for providing the AMHP service. I therefore invite the noble Baroness to reconsider the amendment.

Baroness Gardner of Parkes: I thank the Minister for those comments. They will be very valuable to the people concerned, who were worried that they would not be seen to be independent. It is quite clear that the employer is the local authority, which carries the ultimate responsibility. I should mention that the noble Baroness, Lady Howarth, said I could quote her. She has been very helpful in discussing this issue.
	The fact that those comments will now be on record in Hansard will in itself be valuable. It may be that the matter does not need to be pursued further. But that remains to be seen. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 34 not moved.]

Baroness Gibson of Market Rasen: moved Amendment No. 35:
	Schedule 2 , page 46, line 32, at end insert—
	"( ) After subsection (2) insert—
	"(2A) Where the patient had a child under the age of 18 residing with them immediately prior to the application being made, the local social services authority must, as soon as reasonably practicable, make an assessment under section 17 of the Children Act 1989 and the local social services authority must also take reasonable steps to inform the child of the application process in light of the child's age and understanding.""

Baroness Gibson of Market Rasen: Amendments Nos. 35 and 37 relate to the children of mentally ill patients. The amendments are supported by Barnado's, Young Minds, NCH, NCB and the NSPCC.
	It is estimated that one-quarter of adults who are known to mental health services are parents. In at least one-third of families who are referred to social services due to concern about child protection, parental mental health or substance misuse plays a major role. Very often a child of a parent with mental health difficulties finds himself or herself as a main carer for the parent. Such children face a number of difficult or distressing situations that they have to overcome on their own. Severe mental health problems can have a serious effect on a parent's ability to parent, especially if there are few other adults around to give support.
	It is estimated that there are 175,000 young carers aged under 18 in the UK, a substantial number. Their average age is 12, but they can be as young as five. Twenty per cent of young carers miss school because of their caring responsibilities at some time or other. Generally, schools do not or cannot provide either counsellors or other means of support to help these very vulnerable and often isolated young people, and young carers themselves are often reluctant to tell teachers or social workers of their situation. The experiences of young carers obviously differ but they have one thing in common. As one Barnardo's children's services manager put it,
	"The kids we see grow up fast. Young carers are adults".
	Because of their parents' condition, children may find themselves affected by what we would regard as inappropriate behaviour; for example, a child being kept up all night to play by a parent who is in a manic phase of their illness, or a child having to look after themselves and get their own meals because of a parent's depression. The child does the housework, the washing and anything else that needs to be done. Such examples were provided to me by Barnardo's, and they show how vital support for such carers is.
	Young people who are responsible for the care of their parents have enormous responsibilities not faced by other children of their age and can find their own mental health affected by their circumstances. Often they suffer from stress and have low self-esteem. Unfortunately, there is quite a lot of evidence that the needs of children who are carers are too often overlooked by our welfare services and that children's and adult services do not work together to ensure that services provided to an adult are placed in the context of the wider family.
	In research from a Joseph Rowntree report, published in 1998, children who had experienced parental health problems, domestic violence or parental substance misuse reported that they had no confidence that a professional would help them and that professionals often spoke to them in a way they did not understand. That experience is summed up by one young person who said, "I needed good age-specific information about my mother's condition and its consequences. And I needed someone to talk to who would listen in confidence and help me to express and explore the complex feelings and situations I was dealing with". Equally, there is evidence in research by Kroll and Taylor in 2003 in a number of settings, not only mental health. They found that many professionals were themselves uncertain about making referrals to children's and families' social work teams in respect of parents and were often unsure about when or how to make a referral.
	Section 5.6 of the National Service Framework for Children, Young People and Maternity Services refers to adult health services. It states that the safeguarding of children is a priority in any assessment or ongoing treatment of parents who may be unable to respond to their child's developmental needs. It also states that any care programme responding to an adult health or treatment need should include consideration of the needs of any child or young person. However, as currently drafted, the Bill provides no clear link between treating the adult and assessing the needs of any children in the household. Additionally, the Bill has no specific provision for an assessment of need for any children living in the same household as a person subjected to compulsory treatment. It may be that an assessment of a child, such as one under Section 17 of the Children Act, could take place when a parent is subjected to compulsory treatment. However, the Act does not require such joined-up action to take place.
	The purpose of these amendments is to strengthen the current position by making it compulsory for the child to be informed of what is happening in an age-appropriate way and for a full assessment of the child's needs to be made. I beg to move.

Earl Howe: I am very much in sympathy with the amendments tabled by the noble Baroness, Lady Gibson. The needs of child carers are not often recognised in legislation. The Mental Health Bill as drafted provides no recognition of the needs of these young people. They are excluded, quite rightly, from the ability to act as the nearest relative for their parent and, as such, are therefore excluded from the right even to be informed that an application has been made in respect of the parent. The provisions on social reports in the Act provide no recognition of the need for a separate assessment to consider the needs of any children who may be affected by the application for compulsory treatment made in respect of their parent.
	The amendment, as the noble Baroness said, aims to deal with that omission by providing children living with people with mental health problems with specific rights under the Act. That is in line with standards 2 and 5 of the National Service Framework for Children, Young People and Maternity Services. Standard 2 states that collaborative arrangements should be in place between services for adults and services for children and families. I am sorry to say that there have long been problems of poor co-operation between adult and children's services. Changes to services since Section 14 of the Mental Health Act was drawn up have not put right those stresses and strains. The recent introduction of children's trusts under the Children Act 2004 has meant that adult services have effectively been split from children's services. These amendments would ensure co-operation between adult and children's services and ensure that the needs of children, particularly young carers, who are affected by their parent's illnesses, are not ignored. I hope that the Minister will be receptive.

Baroness Walmsley: I have added my name to the amendments, because I am as concerned as the noble Baroness, Lady Gibson, that the Bill provides no clear link between treating the adult and assessing the needs of any children in the household. Although the framework for the assessment of children in need and their families may be used to determine whether a child is in need under the Children Act 1989, there is no requirement in this Act that such joined-up action take place.
	The children's charities which the noble Baroness listed are very concerned that, without an explicit requirement in the Bill placing a duty on both health and social services to look into this matter, vulnerable children could—and they do—slip through the net. The amendment would provide an additional safeguard to ensure that joined-up working between health and social services professionals takes place and that the needs of any children who may be affected by an adult being detained under this Act are automatically thought about within that process.
	The Minister may feel that the amendment is unnecessary and that the matter is dealt with by the standards that the noble Earl, Lord Howe, mentioned and other legislation on children's services, but I shall relate to him a few case histories from real life to illustrate that the current legislation and guidance are not working in every case. I hope he will feel that they back up our feeling that this needs to be made explicit in the Bill.
	I turn to the first example. Last year, a single mother in a travelling community was seriously depressed. The mental health services and social services were involved with the family. Very sadly, the mother committed suicide at home in front of the children. The two young children were left in that home for two days with their mother's body before relatives kicked down the door. Nobody knew that there were young children in a household where the mother was so seriously depressed as to be at risk of suicide.
	In the second example, a mother was sectioned. The father was left at home with the children. When the mother was sent home from hospital, but still under supervision, the father simply could not take any more and left the family. The mother tried to manage, but in the end could not. The professionals were unaware that the children were vulnerable and at risk, so no referral was made. The children could not cope in school and eventually dropped out. One of them is now in youth custody, which indicates what can happen to a child's life when they do not receive the assessment which the amendment seeks.
	YoungMinds has told me about a single mother with significant mental health problems whose illness means that she is periodically unwell. She has no support in looking after her seven year-old son who has autism. So the family has double problems. Social services are involved, but they have told the mother not to ring the out-of-hours emergency social work number when she feels that she is becoming unwell. As a result, when she feels that she is becoming unwell, she goes to the accident and emergency department in her local hospital, because she knows that it will make sure that someone goes out to look after her son. Staff in A&E have now told her not to come to them, because they are not the correct place to deal with her, but she continues to go there simply because she knows that somebody will do something about her son.
	The final example involves a mother who was sectioned. She had two sons, aged 11 and 14. No one made contact with the children or asked her about them. The 14 year-old son had significant mental issues and was extremely violent. The 11 year-old brother was at serious risk of being attacked by him. Both boys were alone for a whole week until an outreach worker discovered them. Social services had been involved with this family, and the boys were on the at-risk register, but social services seemed to be unaware that the mother had been sectioned. The health professionals had not been talking to the social services professionals.
	These examples make it clear that the joined-up approach is not always working as we would like. However, there is nothing like putting a duty on someone to do something to make them do it. We need a clear statement about this in the Bill; it is entirely appropriate to put it in. Besides, it is surely of benefit to the patient and his or her treatment and recovery to know that the children are being well looked after.
	The second part of the amendment provides for children to be given age-appropriate information about the process of assessment and detention of their parent and about their parent's illness. Of course, since quite rightly children cannot be considered to be the nearest relative, they do not gain the right to be informed of an application made in respect of a patient. So there is a gap in the Bill for the provision of information to any children who may be affected. The amendment states that that should be provided, in the light of the child's age and understanding, which is crucial.
	Nowadays social services must take into account children's wishes and feelings when decisions are being made about their care, but how can a child adequately express his wishes and feelings if he does not know the truth about his situation in the light of his parent's mental illness? Proper information, given in an age-appropriate way, will also help a child to deal internally and emotionally with the turmoil that the illness of a near relative causes to him or her.
	There are many very strong arguments for accepting this amendment, and I hope that the Minister will do so.

Baroness Royall of Blaisdon: Amendment No. 35 would ensure that the needs of any child under the age of 18, residing with a patient immediately prior to an application for the admission of that patient, are fully assessed and that the child is advised about the application process. Amendment No. 37 similarly seeks to ensure that the needs of any child under the age of 18, residing with a patient immediately prior to their admission to hospital following an application by the nearest relative, are fully assessed and that the child is advised about the application process.
	I pay tribute to YoungMinds, Barnardo's and the NSPCC for the excellent work that they do with children who have mental health problems and the children of parents who have such problems.
	It is vital that the needs of children in the household are considered when an adult is assessed and detained under the Act and that children are given clear information, appropriate to their age and understanding, about their parent or carer's illness and treatment. As my noble friend Lady Gibson of Market Rasen informed us, many of the children whom we are talking about are themselves carers; it is extraordinary that children as young as five are acting in that role. However, there is already a legal framework to ensure that children's needs are assessed and met. Section 17 of the Children Act 1989 places a duty on local authorities to promote the welfare of children within their area who are in need. Therefore, repeating this within the Bill would be duplication.
	The Framework for the Assessment of Children in Need and their Families outlines a framework for all those who work with children and their families to decide whether children are in need under the Children Act 1989 and how best to provide help. There are also duties under Section 10 and, particularly, Section 11 of the Children Act 2004, under the duty to make arrangements to ensure that functions are discharged having regard to the need to safeguard children, which are relevant to all agencies—health and local authority—that work with children or with adults who have children. The decision about whether to carry out an assessment under Section 17 of the Children Act 1989 should be based on the individual child and carer's situation. Work is already under way to increase the awareness of adult mental health practitioners about the needs of children in the household.

Baroness Walmsley: If the social services do not know about the children's situation because the health professionals have not told them, how on Earth can they make a decision whether to make an assessment?

Baroness Royall of Blaisdon: Indeed, we have to have much more joined-up working, as the noble Baroness said earlier, between social services and health to ensure that both services are aware of the situation of the family as a whole, not just those who are suffering from mental health problems. The noble Earl, Lord Howe, will not like my saying this, but that is a matter of best practice and ensuring that the services themselves work in the manner that we would deem to be proper.
	I noted the very sad—indeed, terrible—cases raised by the noble Baroness, Lady Walmsley. Clearly at the moment not enough is being done to ensure that joined-up working or that the needs of children are properly being taken into consideration. However, I refer noble Lords to the report of the Social Exclusion Unit, Mental Health and Social Exclusion, published in June 2004, which identified at action point 16 the need for better support for parents and their children, and set out a detailed plan of action.
	Last month, the three-year National Social Inclusion Programme, which co-ordinates cross-government implementation of the action points in the SEU's report, provided an update on progress. The Action 16 group leading the family, children and carers work is working with the Social Care Institute for Excellence and the National Institute for Health and Clinical Excellence to develop cross-cutting guidance for health and social care adult and children's services. It has also completed a national review of hospital contact and support arrangements.
	In summary, we believe there is already a legal framework to ensure that children's needs are assessed and met. However, we recognise that practice in this area must be improved, hence the need to cover it clearly in the code of practice—not just in the children's chapter—and to continue policy development in this area. Indeed, we would welcome co-operative work with YoungMinds, Barnardo's and the NSPCC to ensure that the code of practice is, in their view, adequate. I urge my noble friend Lady Gibson to consider withdrawing her amendment.

Baroness Gibson of Market Rasen: I thank noble Lords who have taken part in this debate. It was heartening for me to hear the spokespeople for both the Conservative and Liberal Democrat parties supporting this amendment.
	My noble friend accepted that if there are safeguards in other Acts then they are obviously not working; indeed, the noble Baroness, Lady Walmsley, gave us important examples of how awfully they are not. However, I listened carefully to what my noble friend said and will obviously give this matter further thought before the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 36 had been withdrawn from the Marshalled List.]
	[Amendment No. 37 not moved.]
	Schedule 2 agreed to.
	Clauses 21 to 24 agreed to.

Lord Williamson of Horton: moved Amendment No. 38:
	After Clause 24 , insert the following new Clause—
	"Independent mental health advocacy
	After section 125 of the 1983 Act insert—
	"125A Independent mental health advocacy
	(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.
	(2) The help available under the arrangements must include—
	(a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient's treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights.
	(3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet the patient in private.
	(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate—
	(a) only if requirements specified in the regulations are met in respect of him; (b) only if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; and (c) only in circumstances otherwise specified in the regulations.
	(5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangements should, so far as practicable, be independent of any person responsible for the patient's treatment.
	(6) The following are qualifying patients—
	(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act; (b) a community patient; (c) a patient who is removed to a place of safety within the meaning of section 135— (i) in the execution of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.""

Lord Williamson of Horton: In moving Amendment No. 38, I will also speak to Amendment No. 39. I believe these amendments, which relate to independent mental health advocacy, were originally tabled by a Labour Peer, the noble Baroness, Lady Morgan of Drefelin. She was subsequently promoted to be a government Whip so had to withdraw her name. I considered that the question of advocacy was most important, and that it was most desirable for the Committee to have an opportunity to debate it. I therefore tabled these amendments in my name, and the noble Lord, Lord Patel of Bradford, has added his to them. I am sure that the Minister will agree that the amendments are so good that it is no surprise that the noble Baroness, Lady Morgan, was promoted to the government team.
	For good order, I just add that we have already debated Amendment No. 41. While I am not referring to it specifically again, it refers to advocacy for young people, and in the context of what we are discussing we should be aware that that amendment was tabled by the noble Baroness, Lady Howells of St. Davids, who spoke movingly on it earlier. So, there is a bit of a package even though that is not for discussion now.
	The purpose of these amendments is to ensure, first, that the patients subject to compulsory powers under the Mental Health Act 1983 have a statutory right to an independent mental health advocate; secondly, that they are made aware of their right to independent advocacy when decisions are being made on their care and treatment; and, thirdly, that they can meet their advocate in private.
	Amendment No. 38 also extends the definition of qualifying patients beyond the groups that the Government identified in the 2004 draft Bill. It would now include patients under Sections 135 and 136 of the Act, and those undergoing serious medical treatment such as electro-convulsive therapy. The "qualifying patients" definition is important. In this amendment, it would include particularly those subject to police powers; it goes without saying that a person who might find himself or herself in a cell or be subject to a warrant delivered by a policeman is, evidently, one who could benefit from the advice of an advocate. I wanted to cover that, so the amendment proposes it.
	More generally, there are two reasons in favour of a statutory right for advocacy. First, there is the human element. We have all recognised in earlier discussions on this Bill that those admitted to hospital against their will are likely to be fearful and probably unsure or, in some cases, completely confused about why they are there and about their future. In many cases, the need for independent support is evident. Secondly, there is the protection of the interests of those deprived of their liberty. An advocate could concentrate the patient's attention on communicating their interests and, where appropriate, allow them to exercise their rights—for example, on appeals. The basic point is that the advocacy for detained people is different from that in general or for informal patients. I beg to move.

Lord Patel of Bradford: I support the noble Lord, Lord Williamson of Horton, and will elaborate on some of his points. The Mental Health Bills of 2002 and 2004 were great freighters of legislation, aboard which there was much that may have been of dubious value and some things that were positively harmful. Many in the mental health field were relieved when they were scuppered. I see my job this afternoon as something like an act of reclamation, to bring up from the sunken hulks of these Bills their one real treasure—the promise of a statutory right to advocacy. That was a feature of the 2002 and 2004 Bills that many practitioners, quite rightly, viewed as one of the most positive proposals for a law fit for the 21st century.
	The purpose of this amendment is therefore to ensure that all patients subject to compulsory powers under the Mental Health Act have a statutory right to an independent mental health advocate, that they are made aware of their right to independent advocacy when key decisions are being made in respect of their treatment, and that they have support if they allege abuse. The general case for advocacy for mental health service users is self-evident, and I shall not dwell on what is not a disputed matter. Although we must obviously not assume that mental disorder inevitably robs a person of their capacity to speak for themselves, psychiatric hospitalisation and its sequela is perhaps an unavoidably disempowering experience—especially when it is imposed through the coercive powers of mental health legislation.
	The following evidence was given to the Joint Committee by James Hargreaves, a hospital chaplain:
	"I have been working as a part time chaplain in a Community Health Trust ... I have often been struck by clients' sense of bewilderment, confusion and anger during their first few days after admission. It seems to me that a comprehensive system of advocacy is vital particularly at this stage of treatment. There is a need for a greater depth of explanation of the direction the treatment is likely to follow, and of the implications of a section order".
	I add that the Mental Health Act commissioners continue, on their visits, to raise frequent questions as to whether, and to what extent, detained patients have been made aware of their legal status and rights under Section 132 of the Act. While the MHAC does what it can to make services fulfil their legal duties in giving patients information, even where services attend closely to that legal duty—and nurses are diligent in both explaining patients' rights to them and providing written information—it can be no substitute for the potential empowerment of a good advocacy service.
	With that in mind, this amendment is intended to achieve four important aims, which I will go through briefly. First, and most importantly, it will establish a statutory right to advocacy in the Mental Health Act. While the Government maintain that they are keen to increase access to advocacy through non-legislative means, this is not enough. Advocacy should play an important safeguarding role for detained patients and access to an advocate should be enshrined in law. There are a number of reasons for that: advocacy for detained patients is in its nature different from advocacy for informal patients, as it forms a safeguard against the improper use of powers against a person deprived of their liberty; an advocate can provide a means for the patient to exercise their right to appeal against decisions made about their care and treatment; and advocacy is a way of communicating their interests when they may lack capacity to do so for themselves. These are fundamental human rights, which surely must be upheld in law.
	People admitted into hospital against their will are likely to be confused and fearful, distrustful of authority and feel out of control. At a point of crisis, the need for independent support is the strongest. It is logical that where government resources to invest in advocacy schemes are scarce, they are channelled into priority areas and to the most vulnerable patients. Therefore, a statutory right will ensure that advocacy is provided to patients at the point of crisis.
	It is crucial that we tackle existing inequalities in the mental health system, particularly those relating to the significantly worse experience of people from black and minority-ethnic communities treated under the Mental Health Act. Providing advocacy is an important part of that solution. Culturally competent advocacy can improve therapeutic alliances and find culturally, socially and racially responsive resolutions to conflict where it arises. The Mental Capacity Act 2005 enshrines a right to advocacy for people lacking capacity through the independent mental capacity advocacy service, due to be implemented in April 2007. It is unacceptable for some patients lacking capacity to be awarded a statutory right to an advocate while those who lack capacity and are detained for their mental disorder do not have a similar statutory right.
	Secondly, the amendment will ensure that patients are informed of their right to an advocate. The amendment specifies that there is a duty upon the appropriate authority to inform patients of their right to an advocate at various points during the period of compulsory treatment. It allows for the right to advocacy to be built into decisions made during compulsion, including treatment decisions, questions about the patient's status as a detained patient and where the patient is particularly vulnerable, such as when he or she is detained in a police cell under Section 136, placed in seclusion, or is reporting abuse or a crime while in hospital.
	For access to advocacy to be meaningful, it is crucial that patients are made aware of their right to engage an advocate. The right to advocacy must not be dependent on how conscientious individual members of staff are in informing the patient of the service. There should not be the opportunity to downplay the right to an advocate where staff feel that their time is short, or when the patient is strongly opposed to a proposed intervention and engaging an advocate might hold up decision-making. A right to be informed prevents advocacy being available only to people in the know or who shout the loudest, and avoids the potential for inequalities to emerge in accessing advocacy.
	Thirdly, the amendment will extend the definition of a "qualifying patient" to include patients subject to police powers. Patients may be particularly distressed when they are taken from a public place, or after a policeman has entered their house with a warrant, and find themselves in a police cell or other alien environment under holding powers. An advocate in such an environment will be able to provide a friendly non-judgmental face, information about what has happened and what happens from that point on, information about the patient's rights, and representation if the patient lacks capacity to express his or her wishes.
	Fourthly and finally, the amendment will enshrine the right for patients to meet their advocate in private. As the chairman of the Mental Health Act Commission, whose major virtue is that we can and do visit and talk in private with detained patients at any reasonable time, I am very aware of the importance of a similarly statutory right of access for advocacy services.
	Advocates should have the right to meet the patient in private, as set out in the 2002 draft Mental Health Bill, and as supported by the parliamentary joint scrutiny committee on the 2004 draft Bill. It is no good having statutory advocates who cannot get to their clients. I should note that, in its many years of visiting patients, the Mental Health Act Commission has not, to my knowledge, had any serious problem with the concept of a "reasonable time" to visit, although no doubt this has led to some lively discussions between staff and commissioners when we have appeared at night. It is important, however, that anyone vested with a statutory right of access should be bound to operate that right within reason.
	I could go on, but noble Lords will be pleased that I shall not. I will finish by reminding noble Lords that the promise of a statutory right to advocacy, which has now been fulfilled for patients subject to the protections or powers of the Mental Capacity Act, addressed a demand of the mental health service user movement and of mental health groups and was seen as the most progressive aspect of past government Bills to enshrine a law fit for the current generation. We should fulfil that promise to the people who are the real concern of mental health legislation. Again, I wholeheartedly support the amendment.

The Lord Bishop of Ripon and Leeds: I, too, strongly welcome these amendments, which seek to reinstate one of the best features of the 2004 draft Bill. The need for accessible, independent advocacy has been accepted in relation to mental capacity and it is crucial that it should be accepted in the field of mental health care. I have heard many moving stories, both from patients and still more often from their closest relatives, who may be the nearest relatives in the terms that we have talked about today or may be other close relatives—people who, when confronted by the bewilderment of mental illness, find themselves unable to cope or to understand. All of us who have had to care for people facing such a crisis, or who have faced such a crisis ourselves, know how bewildering and disorientating it is.
	We also know how haphazard the care and advice provided in such circumstances is. Doctors and others who are responsible for the patient who is liable to be detained or to receive intrusive treatment are often unable to provide impartial advice in any way that will be heard by the patient. Time and again, the result is simply more confusion.
	As we have heard, clergy are among those who are often called in at such times—hospital chaplains, police chaplains or parish clergy. We do our best and we can provide pastoral care, but that is no substitute for the independent advocacy that is sought by this amendment. It will provide support for vulnerable people to cope not only with their illness, but with a fear of authority, which may affect them deeply and lastingly into the future. I very much hope that we shall be able to add these clauses to the Bill.

Lord Hunt of Kings Heath: It is like old times to be discussing independent advocacy, as it will be with patient and public involvement, which I look forward to debating with the noble Baroness, Lady Barker, in particular when the local government Bill comes to your Lordships' House later in the year. I am grateful to the noble Lord, Lord Williamson, for allowing us to debate this matter. I should explain to him that my noble friend Lady Morgan has been sent to a centre for re-education and training, otherwise known as the Whips' Office.
	This is, of course, a very important matter. The speeches that we have heard were powerful and there is no doubt of the contribution that advocacy can make. It represents an important safeguard in helping to ensure that the patient's voice is heard and that he is able to exercise his rights. The Government are committed to developing the advocacy services available to detained patients across the board.
	We have included guidance to practitioners in the draft illustrative code of practice on the great value of advocates. It stresses the important help that advocates can provide to patients in understanding the questions and information being presented to them and in communicating their views to staff and practitioners. The draft illustrative code of practice also includes guidance on when and how practitioners should consult a patient's advocate. Similar guidance will be included in the code of practice for Wales.
	Also, there is no question but that we already have high-quality services and I pay tribute to those who work in advocacy services. Advocacy services are already available in all strategic health authorities, but I accept that there is work to be done to ensure that these services provide the right level of support to patients detained under the Mental Health Act. We have commissioned Durham University to develop a specialist training programme and standards for mental health advocates, as well as systems to support the commissioning of those services.
	In answer to the right reverend Prelate and the noble Lord, Lord Patel—and my noble friend Lady Howells, who spoke to a similar amendment in a previous group—this work continues to take account of different needs and groups, working with advocates who specialise in working with children, older people, people with learning difficulties and people from black and minority-ethnic groups. Obviously, other groups may be identified in the future.
	It is also being co-ordinated with current work to establish independent mental capacity advocates. Our intention was to develop, by non-statutory means, the vision of advocacy services for patients detained under the Mental Health Act. However, I recognise the strength of opinion here, so I will agree to consider the amendments over the course of the Bill's passage. On that basis, I hope the noble Lord will agree to withdraw it.

Lord Williamson of Horton: I thank the Minister for that reply. We are always very grateful to hear that the Minister will give consideration between now and the later stages of a Bill. There will probably be quite a lot of time for that. We look forward to it; the longer it takes, the more likely we are to get what we want, I hope. I was very glad to hear that; the issue is sufficiently important to be thoroughly looked at. It has been on the table in earlier discussions, though not for this particular Bill. It is well known among those concerned with mental health that it is an important point in practice. However, in view of the assurance given by the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 39 to 41 not moved.]
	Clause 25 [Community treatment orders, etc]:
	[Amendment No. 42 not moved.]
	On Question, Whether Clause 25 shall stand part of the Bill?

Earl Howe: In Clause 25 and the other clauses and schedules grouped here, we have reached what is perhaps the final major area of controversy in the Bill: supervised treatment in the community. Before going any further I should say that the Minister need not be alarmed unduly by the fact that this is a clause stand part debate; it is not my intention to divide the Committee on this occasion. However, I think that a useful purpose would be served in Committee by avoiding a series of debates on a sizeable clutch of smaller amendments and concentrating instead on the broad issues of principle.
	The Government's intentions in promoting the concept of community treatment orders are, I believe, entirely honourable. They want to create a means of preventing re-admissions to hospital and to provide a less restrictive alternative to in-patient treatment. If we agree that those are good aims, there seem to be only two questions of any substance to be settled. First, will the policy have any unintended and unwelcome consequences? Secondly, will the policy work? As to whether it will work, the evidence for this is pretty thin. Such evidence as we have is, at best, inconclusive. The problem is that it is very difficult to draw comparisons between what happens overseas and what may happen here, as we are dealing with different mental health systems. In some countries where there are CTO arrangements in place, there is far greater support from community services than there is in Britain. Studies carried out in the USA, where CTOs are used in a number of states, prove very little. The conclusion of one major study said:
	"There is no study that proves that a court order for out-patient treatment, in and of itself, has any independent effect on outcomes. No randomised clinical trials have examined the relative efficacy of involuntary out-patient treatment and assertive community treatment, the alternative with the best record of producing positive outcomes for people with severe mental illness".
	I am unaware of any other study that points to a more positive conclusion; the Minister may wish to correct me.
	The point about relative efficacy is important. It could indeed be true that early intervention and assertive outreach are just as effective in achieving good outcomes as involuntary treatment. If so, those are surely the services we should be strengthening, rather than making patients wait until they reach a crisis and then forcing them to receive the services. There is a false logic at play here. Indeed, to the extent that service users found CTOs beneficial, it may in some cases have been because, as a result of the order, services were made available to them which they would have used voluntarily but were not given access to until they were compelled. If so, that is not a very good argument for the introduction of CTOs.
	Do CTOs prevent readmission? A Cochrane meta-analysis of the data found no difference in readmission rates and calculated that it would take 85 CTOs to prevent one re-admission to hospital. A Canadian study reached a rather more positive conclusion. Another study in Western Australia found that CTOs increased the likelihood of readmission. Much depends on the attitude of the patient. Regrettably, in a further study, it was found that patients who lacked insight into their condition were less likely to consider community mandates to be fair and effective. Yet those are exactly the kind of patients targeted by CTOs, because they fail to comply with treatment.
	If we need to worry about the evidence base for CTOs, we should be equally worried about their unintended down side. The first down side is that CTOs are likely to lead to an increase in the use of coercion. That, at least, is what the evidence currently suggests. It is a point of particular concern in the context of black and ethnic-minority patients. In Scotland, where CTOs were introduced with slightly different conditions, the anticipated total number of people who might need to be placed on a CTO was reached almost within six months of the provisions taking effect. Another recent study estimates, on the basis of the Scottish experience, that between 6,000 and 9,000 people are likely to have CTOs applied to them in the first six months. If that is right, the Government's longer-term projections of use may underestimate the real numbers by a factor of two or three.
	Unfortunately, the provisions in the Bill lead us to a very similar conclusion. They do not do enough to ensure that only a limited and strictly defined group of patients could be made subject to CTOs, which is what the joint scrutiny committee recommended. The criteria for making a person subject to a CTO are significantly wider than in other jurisdictions such as Australia and New Zealand, both of which have a much tighter definition of mental disorder and a broader range of exclusions. In Scotland, too, the definition is tighter.
	By contrast, in the Bill we have not only a wide definition of mental disorder; we also have limited exclusions, a wide definition of treatment, wide entry criteria to a CTO and greater numbers of clinical staff, including occupational therapists, who can keep people under compulsion. If one adds to that what most of us acknowledge is a pervasive climate of defensive practice, the cumulative effect points to CTOs being used far more widely than Ministers are making out. We and many others wanted some clear reassurance in the wording of the Bill that CTOs would apply only to genuine revolving-door patients. But the Bill contains no such wording, and I cannot help feeling that that is deliberate.
	It is not surprising that service users are fearful of these provisions. They see them as increasing their chances of being made subject to compulsion; they fear that compulsion will be used when people are not severely unwell; they fear that they will not receive what they need in the way of support; and, perhaps most of all, they fear that it will be difficult to come off a CTO because clinical staff will play safe to ensure compliance. The danger is that these realistic fears about CTOs will drive people further away from the services and treatment that they need. The delicate relationship between service users and doctors requires trust to keep it afloat. If the fear of CTOs is as I understand it to be, then the end result could be exactly the opposite of what we want to see—an increasing level of disengagement from mental health services and a higher risk of relapse and readmission to hospital.
	I expect that the Minister will think me something of a prophet of doom, but I simply say to him that we have to base our thinking on the available evidence. Unless the Minister has some different evidence, the introduction of CTOs in the manner proposed seems to me to be a leap in the dark that carries huge risks. If the criteria for compulsion were narrower, and especially if we could somehow restrict the applicability of CTOs to revolving-door patients, I would feel a good deal easier. As it is, I have to say that the Government have further work to do.

Lord Carlile of Berriew: I wish to add a few words to what has been said. In my view, the noble Earl has made a very strong case against the provisions for CTOs as they are described in the Bill. The Joint Committee set out its views very clearly at pages 70 to 72 of its report and I do not propose to repeat its conclusions here. I emphasise that the committee heard a great deal of evidence on this matter. We looked for evidence from abroad, and the evidence that we received supported the conclusions summarised by the noble Earl a few moments ago.
	I emphasise the concern of the committee that, unless CTOs have some kind of finite time limitation, there is a real risk that patients will find it very difficult ever to be removed from a CTO. At lines 9 to 14 on page 19 of the Bill, subsection (3) of proposed new Section 20A makes it absolutely clear that community treatment periods may be extended initially for six months and then for a further period of one year. There is no particular objection to that, but it goes on to say,
	"and so on for periods of one year at a time".
	That is precisely the kind of provision about which the committee was deeply concerned. It is precisely the kind of provision that could lead to the sort of cautious approach of which the noble Earl was speaking. We were not opposed in principle to CTOs with appropriate circumscription—that has already been discussed—but we invite the Minister to respond positively by saying that the Government will in some way revisit the possibility of CTOs being extended time without end.

Baroness Murphy: I added my name to those who oppose the clause because I am concerned that the Committee is sleepwalking into compulsory community treatment orders without taking the evidence into account. As it is all on the record, I had better confess right at the start that I have changed my mind at least twice on these provisions. Like many others, I have at times thought that they might be a solution to a very restricted problem but, as they are currently outlined in this Bill, I do not support them. I hope that, in any case, Members of the Committee will appreciate that it is the mark of a proper scientist to change his or her view when faced with new evidence.
	First, I want to talk about the problem that we are trying to solve. There are two possible reasons for supervised community treatment. The first is a belief that we will improve compliance with medication for the general well-being of people with severe mental illness. The second—let us face it, this is what the tabloid press would like us to do—is that we will reduce the incidence of violence and harm, specifically homicide.
	The Government have already declared this to be a public safety Bill in part, rather than a mental health Bill pure and simple, so I shall talk about the violence issue. The Government may be surprised to hear that I find myself very near to their position on the importance of the violence and public safety issue. There is an association between violence and schizophrenia that is reflected not just in the homicide statistics but in the countless episodes of lesser violence and threats to family and others, which can ruin the lives of family and carers. What emerges from reviewing homicide inquiry reports involving patients with schizophrenia is an attitude problem by some general psychiatrists. I shall not be very popular with my colleagues for saying this but someone has to.
	Violence in serious mental illness is like sex before Freud—we cannot talk about it openly and we want to dismiss or disown the risk. Service user groups do not like us talking about it either because it tends to heap stigma on the majority of innocent law-abiding, non-violent patients. So doctors sometimes use any lack of clarity in the law to avoid taking the initiative, even when there is a long history of previous violence and they are seriously worried.
	I have had a case drawn to my attention in which a psychiatrist consulted his defence union about his personal position because he was worried about the risk that a patient posed, yet he did not request a Mental Health Act assessment. That patient went on to commit two stranger homicides shortly afterwards. There are plenty of other examples where there has been reluctance to intervene, despite lots of warnings. I have mentioned previously in Committee the desperate messages sent by the parents of Andrew Robinson to his psychiatrist and to social services about their son's increasingly frightening symptoms in the weeks and days before he killed a young occupational therapist—calls for help that were totally ignored. These are not isolated cases.
	The great progress in the NHS over the past decade, for which I congratulate the Government, is that mental health patients have been listened to more and their wishes have been respected. There is no doubt that there has been a dramatic improvement in services. But that can lead to team members feeling there is something wrong or improper about compulsion or coercion, even for those who really need it. The question, therefore, is not whether there is a problem but how best to fix it, and here I part company with the Government's approach as it is likely to be entirely counterproductive.
	I know that the Government hope that, although supervised community treatment may not make much difference on its own, it may serve to change the culture and increase the confidence of doctors in intervening early when necessary. I would almost be persuaded by that if it were not for the fact that the enhanced care programme approach has not helped, supervised discharge—the 1995 new legal provisions—is almost never used, and guardianship is rarely tried. Why is that? It is because they require effort, a lot of intervention, increased resources and a focus on a few very difficult people, which can detract from services for other people. We need a real willingness to grasp when serious risk is present, but that is not the case at the moment.
	I know that colleagues of mine, such as Professor Tony Maden, who is a supporter of these proposals, are pressing our college to formulate a violence reduction strategy. I heartily applaud that goal. The difference between us is whether these provisions will be different from any of the others without a substantial change of heart about the proper role of psychiatry. I would be better persuaded if there were evidence from elsewhere that they really helped.
	Supervised community treatments are there to make sure that someone can be brought into a psychiatric unit to be given medication by force. There are no treatments that can be imposed on unwilling patients except injectable medications. The only injectable medications we prescribe in the long term in psychiatry are anti-psychotics. There are no compulsory pills, no oral liquids, certainly no compulsory psychological supports or interventions that we would consider ethical.
	I want to dispose of the notion that we are dealing with anything except a limited number of people with schizophrenia. They are the only people we might catch. I shall talk about the homicide issue first because the evidence is clear that we are highly unlikely to reach sufficient numbers of the right people. Let us consider the marvellous report from Professor Louis Appleby and his colleagues in the excellent National Confidential Inquiry into Homicide and Suicide by mentally ill people. It is a splendid piece of work, published in November, which most of us will have looked at.
	Every year about 50 mentally ill people commit homicide. Only 30 of those have a lifetime risk of schizophrenia and another 15 or so have depressive disorders. The rest have a wide range of conditions that would not be amenable to supervised treatment. Of the 30 a year that we are now talking about, a third have never been in contact with services and of those who have, only 10 have ever been compulsorily admitted. We are perhaps looking at about 20 people whom we might want to catch.
	Obviously one cannot supervise the treatment of those who do not go to services. I remind the Committee that of those 20 whom we are trying to catch, two or three are already in hospital receiving medication. Another one or two a year will be young women who have killed their children during a period of puerperal psychosis. I suggest that they will not be on supervised community treatment. It is notoriously difficult to try to catch people very soon after giving birth to try to prevent that. Let us put aside the people whom we will catch.
	The national confidential inquiry report is fascinating because it points out that of those patients in contact with services, many were not even receiving a formal care programme. Of those who were on enhanced CPA in the community there had been no effective interventions by services at the point of crisis which preceded the homicide.
	I am sorry to go on but I hope the Committee will note that I have not intervened previously this afternoon. Let us look at the population figures. Normally in implementing a public health measure, which the new clause is, the Department of Health adopts an epidemiological rather than an anecdotal approach to policy. We shall consider only men for the moment, since it is predominantly young men who perpetrate homicides of the kind that we are trying to reduce and the violence that we wish to try to avoid. The one-year prevalence of schizophrenia in men of the right age—under 50—who are living with this condition in the population is about 10 per 1,000. That is about 600,000 people across the nation, from whom we are trying to identify the 20.
	In any one year about 114,000 will be receiving care and about 500,000 will not. Of those who are not receiving care, about 200,000 will have been known to services at some point but will no longer be under supervision. Up to 300,000—possibly with rather mild conditions—will not be known to services, but there will be some who have not been brought to the attention of services.
	I hope that I am getting across the message that identifying the "at risk" population is pretty difficult even if psychiatrists' risk assessments were rather better than they are. The accuracy of clinical prediction is low. For every six patients identified as at high risk of committing a violent act in the future, only one will go on to commit such an act. So, we are thinking of putting in place a measure, which in my opinion is likely to have no impact on rates of homicide or serious violence. Raising a bob or two on alcohol taxes would have a dramatically increased numerical impact on homicide rates compared with this. We will restrict an awful lot of people for dubious reasons. The epidemiological evidence that the Department of Health normally requires for implementation of a disease screening programme for breast or cervical cancer, for example, simply does not stack up.
	I shall not repeat the evidence that the noble Earl, Lord Howe, outlined, except to add that I think there have been two randomised control trials—rather bad ones—including only about 400 people. They did not demonstrate any improvement in health service use, social functioning, mental state, quality of life, satisfaction with care or offending. Interestingly, the risk of victimisation felt by patients was improved, which was largely because of the improved delivery of services to those people, as has already been mentioned.
	I realise that lack of evidence of efficacy is not the same as evidence of no efficacy. But what is proposed here is a measure on which the jury is still out. We have heard that it would take 85 orders to prevent one re-admission, 27 to prevent one episode of homelessness and 238 to prevent one arrest, although these are American figures and it is extremely difficult to know. It might take about 5,000 or 6,000 to remove one offence of serious violence or homicide. They will not be an effective alternative to good care. It is difficult to conceive of another group to whom we would subject these sorts of measures—to curtail the freedom of 85 people to avoid one admission to hospital or 238 to avoid one arrest.
	Others have spoken today about the wide scope of these powers in relation to people who will derive no benefit from them and the fears that they engender in service users, particularly in black and minority ethnic groups. One thing that has convinced me that good services are the answer is the early intervention of services. The noble Baroness, Lady Neuberger, spoke about that some time ago when I had the great honour to chair this initiative for the King's Fund. I witnessed the change in services that came about in Lambeth when we increased their acceptability. Services in Lambeth were improved by the provision of specialist, sensitive services that were much more usable by young black people who were more willing to take their symptoms to the community. It was a demonstration that services can be designed to attract and engage the right people.
	In summary, if we are to have such measures we must accept that we are delivering a wild card, which may not be very effective. It may do no more than serve as a temporary reassurance. But when the next suicide report comes along, we will say, "Why wasn't this person on a community treatment order? Why was he not receiving it?" The chances are that there is not a hope of getting someone on an order or very few will get on them.
	If we are to have community treatment orders, we must make sure that they are difficult to get on to, that people on them have reliable services delivered to them, and that getting off them is at least a bit easier than it is now. Someone could carry on being on a community treatment order pretty well in perpetuity. We must remember too that 20 per cent of people with a first episode of schizophrenia will not relapse. One in five people who have a first breakdown will never have another. If people on a first breakdown are put on supervised community treatment, we have to be clear that we are not subjecting them long term to these horrible drugs without real benefit to the individual and society.

Lord Warner: It is with some humility that I follow that speech. I pay tribute to the courage of the noble Baroness, Lady Murphy, in throwing down a challenge to some of her professional colleagues in that way. I am afraid, however, that I come to a different conclusion from the noble Baroness and other noble Lords on some of the evidence we have all seen. I continue to find it surprising that there remains so much opposition to the idea of supervised community treatment orders.
	The idea totally adheres to the principle that people should receive the care they need in the least restrictive setting. The Bill introduces a change reflecting the fact that clinical practice has changed since the 1983 Act was passed. In 1983, most acute mental health services were provided in a hospital. The world has moved on, and we have a much wider range of community-based mental health services. Sometimes in this debate, I do not think the full extent of that change has always been acknowledged by some noble Lords.
	One thing that has not changed as much as we would like, however, is the continuing number of revolving-door patients. They leave hospital, disengage from mental health services, do not continue with their treatment, their health deteriorates and they end up compulsorily detained in hospital. We may have differences of view about the numbers involved, but that is the cycle we are trying to deal with. If there is an alternative, we ought to use it. For reasons I shall go into in more detail, the supervised community treatment order provides an option.
	Not only we, but other countries have discovered that there is an alternative. As I said at Second Reading:
	"We also know that some form of compulsory community treatment is established in jurisdictions in New Zealand, Australia, Canada, Israel, Sweden, Belgium, Portugal and Scotland".—[Official Report, 28/11/06; col. 656.]
	Other countries, including parts of the United States, are also considering it. I am not arguing that they cannot all be wrong—although one might assert that—and I fully acknowledge that there is a mixed range of reports on this experience. A number of noble Lords have drawn attention to that fact that some of the reports are inconsistent—some are not so well founded as others—and different experiences are being reported from different countries. There is also evidence in some reports that the methodologies are somewhat suspect. I accept all of that but, if we look at the range of comparative studies, there is plenty of evidence of significant therapeutic benefits to patients, greater treatment compliance and some reductions in rates of hospital admissions. I do not want to overstate those reports, but that evidence is available. There is also evidence of patient and clinician support for these overseas developments and experiments.
	Academics will no doubt continue to argue over methodologies. The one thing I learnt as a Health Minister is that plenty of academics will take a different view from other academics; if I may be unkind, that is sometimes how to develop a reputation. Whatever the detailed reservations about particular studies, they do not set aside, in any kind of meta-analysis of these studies, the clear positives I have mentioned. It is perhaps significant that other countries have not ceased using CTOs, and have continued to see benefits in using them.
	I rather agree with those who argue that the net of compulsion in community treatment should not be cast too wide. The Government have listened on this, however, and tried to restrict the use to a clearly defined and clinically identifiable group of patients. They have put the group to whom CTOs apply in the Bill. If we believe that the drafting is not as good as it might be and can be improved, perhaps we should discuss that further. But it does not damage the underlying case for community treatment orders.
	The Minister may want to say a bit more on that, but I shall confine the rest of my brief remarks to three key issues: safety, numbers of CTOs and resources. On safety, my clear recollection is that distinguished forensic psychiatrist Professor Tony Maden's 2006 review of homicides by patients with severe mental illness concluded that there is a need for legal powers allowing compulsory treatment in the community for patients with a serious mental illness and a history of non-compliance with treatment. Common sense, expert opinion and overseas experience all point in the direction of some form of compulsory community treatment for a small, defined group of patients. It seems rather irresponsible of us, as legislators, not to face up to some of that evidence. I am not arguing that the net should be cast wide or that we should not try to improve the drafting of the Bill to get to the groups we are concerned about. However, the underlying thrust of the Bill—that we need community treatment orders for a group of patients—is in the interests of public safety and the evidence for it is pretty conclusive.
	Some pretty high figures have been bandied about for the number of people likely to be affected. The noble Earl, Lord Howe, rightly raised this. It is important that we should not, as others have said, sleepwalk into a change where we do not know what the implications are in terms of figures. In my speech on 28 November, I said that the number of those subject to a CTO was likely to build up to, not immediately be,
	"3,000 to 4,000 per year over a five-year period".—[Official Report, 28/11/06; col.730.]
	That is, by about 2013. That compares with 40,000 mentally ill in-patients a year and is substantially more modest in scale than the 15,000 or more that some have suggested. If in-patient services are so hard pressed and unsatisfactory, as has sometimes been suggested in these debates, I do not understand why proponents of that view should not also support a proposal likely to bring some relief to the in-patient area through CTOs. That is a logical consequence of this change.
	Finally, on resources, it currently costs the NHS about £1,200 to £1,300 a week to keep a mentally ill patient in hospital. As I recall from my extensive earlier ministerial briefings, the cost to the NHS of a CTO is likely to be substantially under half that. You do not need to be an incredible mathematician on this: it seems more likely to free up resources for other patients and their treatments. Some have argued that CTOs will be funded by drawing resources from other community services, but I have seen no compelling evidence to support that view. It is more plausible that CTOs will free up in-patient costs for use in the community than the other way around. However, I accept that it will be important to be convincing at a later stage about how CTOs will work and how they will be carried out without detriment to other community services. I wonder whether the Minister can throw more light on this issue, probably not today but at a later stage.
	I have tried to examine this issue from a variety of angles: the impact on patients involved, civil liberty safeguards, public safety, cost to the public purse and overseas experience. Taking these aspects in the round, there seems an overwhelming case for the Government's measured approach to CTOs, although I do not doubt that with a bit more attention we may be able to secure some improvements in the drafting that give more reassurance. But the underlying case seems to me to be made, and in the public interest we need to pursue the policies and the approaches set out in the Bill.

Baroness Masham of Ilton: CTOs could be useful for people coming out of prison or hospital who have a serious long-term illness such as schizophrenia if they are used to see that these patients take their medicines. This has happened in New York, where a directly observed treatment—DOT—system worked to stop drug-resistant tuberculosis. So often people who have been in institutions cannot cope when they come out into the community. They forget to take their medicines and disaster follows. Therefore I agree with what the noble Lord, Lord Warner, has just said.

Baroness Meacher: This is the one amendment on which I want to make a short contribution. In principle I welcome the Government's intention to introduce community treatment orders. I agree with the noble Lord, Lord Warner, that there are without doubt situations in which a community treatment order will be the least restrictive alternative open to a patient and thus in the patient's best interests. There are other situations when a CTO would be justified on ethical grounds—the benefits of such an order having been weighed up for carers in particular, but also for the community, on the one hand; and the loss of quality of life, at least in the short run and maybe in the very long run, for the service user on the other.
	In 1982 the debates on the Mental Health Bill as was gave much less thought to the needs and interests of carers than should have been the case. I was heavily involved at that time and I am now very conscious of the gap. I welcome this opportunity to redress the balance. I therefore wish to explain my support for this amendment. The noble Baroness, Lady Murphy, has spoken eloquently about the homicide issue so I will not touch on that directly. My starting point is that the Mental Health Act 1983 makes provision in Section 17 for the responsible medical officer to grant a detained patient leave of absence from hospital subject to conditions seen necessary by the clinician. This section is already useful in providing a graduated return to home life and as a trial release in which a patient's readiness for discharge can be tested. Section 25, as we all know, is virtually not used. The problem with Section 17 of course is the lack of enforcement powers. If CTOs were eliminated from the Bill, the psychiatrists' cupboard would not be completely bare.
	The question we have to ask ourselves is whether it is more ethically sound for the psychiatrist and team to have too few powers at the time a detained patient is discharged from hospital, as at present, thus depending upon good community care to deal with risks, or whether it is preferable for those powers to be excessively wide-ranging—and that, I am afraid, is how I still see the powers as described in the Bill, despite the comments of the noble Lord, Lord Warner. Which of these two alternatives would be preferred? There are many angles to this argument. The noble Earl, Lord Howe, referred very effectively to the international evidence so I will not go into all of that. The key point is that CTOs apparently have not achieved the hoped-for results but rather the contrary, so it is perhaps not surprising that I and others involved in the mental health services have concerns that community treatment orders as envisaged in the amendment may adversely affect the development of community care. This is really at the root of the problem. Will these CTOs improve things for patients or will they actually make things worse?
	I want to refer again to the Government's national service framework and the valuable contribution being made by early intervention teams, crisis resolution teams and assertive outreach teams. The purpose of all these, as noble Lords will be aware—and I think they have been introduced in every trust across the country—is to enable service users to be assessed and treated in the community wherever possible, rather than being admitted to an in-patient hospital unit. More and more services are becoming available, such as crisis houses, where very intensive care can be provided for people day and night rather than having them in hospital. For these crisis houses you do not need a CTO or assertive outreach teams or anything else. I believe all this excellent work could be undermined by CTOs and for me this is the nub of the problem. I was challenged by one of the advisers to the Government recently asking what I would do if we were not to have CTOs. The answer is really good community treatment and services.
	An important aspect of all this is the stigma associated with mental health problems and with the secondary mental health services. The Government have shown considerable determination to tackle stigma, largely through the work of their social inclusion unit and through these community teams. The last thing service users need is the new Sections 17A to 17G, which would inevitably put pressure on professionals to impose community treatment orders more than they would necessarily wish, and certainly more rather than less.
	It will take only one tragic case to drive up the use of CTOs. If one service user is not placed on a CTO and subsequently commits suicide, this will result in the inevitable inquiry and public criticism of the professionals involved for not taking advantage of the legislation. Is it fair to ask professionals to risk this public criticism when the imposition of a CTO will protect their back? That is the crucial point about limiting the application of CTOs—to protect the professionals from the pressure they will be under to impose these CTOs when really it is not justified. The points made by the noble Baroness, Lady Murphy, are crucial here.
	It is relevant to consider the very different approach to life-threatening physical illness. The Royal College of Psychiatrists pointed out that only 8 per cent of patients with potentially fatal heart disease take the statins that they have been prescribed, but no one criticises the doctors when those patients die. For mental health patients the decision not to take medication may be a very understandable one. The side effects of these drugs that people are required to take can be extremely unpleasant. If there is no risk to others, should we be critical of mental health professionals? Why should we criticise the medical professionals when somebody at home decides that they have really had enough? Of course professionals have a duty to prescribe and to encourage service users to take medication, but is coercion the right way to deal with this? The answer lies in high-quality community services that are being developed thanks to this Government. This is what the Government and trusts are working together to achieve. The Government are setting the strategy; the trusts are really working at it. Surely this is the way to prevent suicide. I understand that where there are risks to others it is a somewhat different matter.
	In summary, my view would be to err on the side of limiting the professionals' powers to those in the 1983 Act. My preferred option is a form of words which will find the right balance between the needs and interests of service users, carers and communities. I was very encouraged by the words of the noble Lord, Lord Warner, who was indicating that we have to find the right form of words to achieve the balance. I would therefore support a rewording of the CTO clause to include a requirement that a community treatment order be approved only if there is evidence that the service user has in the past persistently failed to comply with medication. It should not be just one admission—that may be the only one—but persistent failure to comply with medication. It should also be stated that the consequences of the failure to comply with medication have been so serious for the service user, their carers or their community that there really is a reason for imposing the CTO.
	I want quickly to raise two further issues with new Sections 17A to 17G, and I am sorry that I have taken too much of the Committee's time. The first is the assumption that a patient could be discharged from hospital and placed under a community treatment order by a responsible clinician and approved mental health professional, neither of whom needs to be trained as a psychiatrist. A patient would surely not be placed under a CTO unless assessed as needing to continue to take anti-psychotic medication. We are not talking about behavioural treatments or pills, as the noble Baroness, Lady Murphy, said. The CTO decision requires a full understanding of the long-term consequences of the medication prescribed, the likely side effects over time and possible alternative medication regimes, as well as the consequences of non-compliance. Those are all decisions for which psychiatrists—and, in my view, only psychiatrists—are trained.
	Other members of the multi-disciplinary team will of course have important views and knowledge of the service user to contribute to the decision to impose a CTO and the conditions that it would be appropriate to impose under new Section 17B. What we need in the Bill is clarity: that if someone is suffering from a mental illness—we are not talking about learning difficulties or personality disorder—a CTO should not be imposed other than by the people who understand what they are doing; that is, psychiatrists.
	Finally, I cannot agree with new Section 17B(3)(e) under which one of the conditions that may be specified by a community treatment order is that,
	"the patient abstain from particular conduct".
	This language appears to be drawn from the ASBO legislation and does not belong in mental health law.
	I ask the Minister to consider these matters and the cogent points made by other Members of the Committee. I hope he will agree to discuss amendments that will achieve the desired balance between the needs of the service user, carer and community a balance that would reinforce the progress made under the Government's forward-looking national service framework policies and other radical new developments.

Baroness Barker: I have a couple of additional points. Most of the points have been made, but I want strongly to back the noble Baroness, Lady Meacher, on the history of non-compliance as regards medication. That issue is central. It does not appear in the legislation and, to the best of my knowledge, it does not appear in the code of practice.
	I say to the noble Lord, Lord Warner, that the reason why there is opposition to the measure is twofold. First, treatment may be given in the least restrictive setting, but it is still compulsion. That is at the heart of much of the opposition. Secondly, the evidence base is unclear. He will know that for some months his former department has been sitting on a paper containing evidence of the effectiveness of community treatment orders which it has not published. The fact that the department brings forward such a serious and widely drawn piece of legislation that will have an impact on large numbers of people without its own evidence base is naturally a cause for suspicion. Can the Minister tell us when that evidence is likely to be published?
	I want to mention the code of practice in two respects. Paragraph 12A.23 sets out the conditions as they appear in the Bill, but at the end there is a telling phrase. It states:
	"The above is not an exhaustive list of conditions which may be applied—there may be others depending on the patient's individual circumstances".
	Therefore, it is not just that we are going to compel people to abstain from certain conduct; it is that these CTOs may be widened, using the code of practice, in any way that clinicians see fit. It is a remarkable statement to appear in a code of practice.
	Finally, under the code of practice there is a requirement on practitioners that if they are to grant leave of absence for more than seven consecutive days, the responsible clinician should first consider whether the patient should go on to SCT. Why? If the issue is about compliance, if it is based on the judgment of the clinician, why should they have to do that? There will be patients for whom leave of absence is the best therapy treatment; there will be patients for whom SCT may be the best therapeutic basis. The existence of that statement leaves one to suspect that there is a strong possibility that SCTs will become the preferred option for clinicians and that they will be allowed to get away with it whether or not it is appropriate.
	Those are just a few of the very many reasons why this idea is probably one of the most unpopular that the Government have proposed in a very long time.

Lord Hunt of Kings Heath: We have had an interesting and useful discussion and I am grateful to the noble Earl, Lord Howe, for proposing that we debate the Question on clause stand part in this way. It is an opportunity for all of us to reflect on some of the important issues raised. As my noble friend Lord Warner suggested, some of them fall to be discussed within the overall context of the Government's wish to take community treatment forward. I will attempt to arrange before the Report stage an opportunity for Members of the Committee to meet our advisers to discuss CTOs and the way we expect them to operate. I am sure that we would all find that useful. As the noble Lord, Lord Carlile, suggested, it is one of the major pillars of the legislation and no wonder we are having an extensive debate today.
	As my noble friend Lord Warner said, far from this being the negative measure that it has been painted, it brings mental health law in line with what has been achieved in modernising mental health services. I say to the noble Baroness, Lady Meacher, that far from seeing this as a conflict with the welcome developments in community services, we see it as marching hand in hand with them. The Government see it as one of the important elements in dealing with the revolving-door cycle—that of admission to hospital and treatment leading to improvement, discharge, relapse and readmission. There is no question but that, in terms of that extremely vulnerable group of people, anything we can do to provide the kind of support that will stop that happening must be seriously considered.
	This is a difficult and complex area, but we are attempting to put in place a framework that enables professionals to treat patients effectively in the community while protecting their rights. There is no reason why the existence of community treatment orders should frighten people and make it less likely that they would seek treatment. Patients can go on supervised community treatment only after a period of detention in hospital. Therefore, such treatment is not an issue at the outset of illness. Nor do we see it as damaging the relationship between professionals, patients and the clinical team. We believe that supervised treatment will help to foster trust; it will help compliance with treatment in the community and make it easier for professionals to sustain a therapeutic relationship with someone if they remain well rather than if they keep relapsing.
	The noble Earl, Lord Howe, asked about perverse incentives. I recognise that noble Lords have expressed a fear that the Government's aim is to bring into place a system of compulsion at the whim of clinicians and that many more people will end up on supervised community treatment. That is not what we seek to do. It is clear that all of us have trawled in the same pot of evidence. We can sometimes find what we want to find, but there is no question but that there are examples of favourable perceptions of community treatment orders among clinicians and patients. The noble Baroness, Lady Barker, has referred to the work that has been commissioned by my department. I did not recognise what she said about the research being sat on. My understanding is that it is currently being peer-reviewed. I do not yet have a date when that is likely to be completed, but I will let the noble Baroness know when that date is made known to me.
	As far as the numbers are concerned, the estimate that we have given is 3,000 to 4,000 over the next four or so years. These are estimates; an entirely new regime is being proposed. Decisions to place a patient on a supervised community treatment will be made at the discretion of the clinician responding to individual patients and their needs. Clearly, a large number of factors will influence the uptake of supervised community treatment, but we do not recognise the high figures that have been quoted by other organisations. It will be critical to monitor the use of supervised community treatment to assess its uptake in the first year of use, which will of course inform further guidance advice that may be given to the health service. We will certainly want to do that.
	Some noble Lords have expressed concern that a community treatment order can be made too easily and that the criteria for supervised community treatment are too broad. That is not what we intend. We have set a high eligibility threshold. Patients must have been so ill that they have been detained in hospital for treatment under Section 3. That is not a hurdle lightly cleared; it goes further than what happens in other countries that have gone down the route of community treatment order-type approaches. Strict criteria must be met before a patient can be placed on a community treatment order. Among other factors, a patient must remain liable to recall to hospital and be subject to compulsory powers under the Act, so the decision-maker must be satisfied that the compulsion is necessary for the patient to receive the treatment that he needs. They must be satisfied that there are factors such as the patient's previous history of non-engagement and non-compliance that make it unsafe to treat the patient in the community voluntarily, so that the only recourse if things go wrong would be to resection the patient under the Act's powers.
	I understand the debate about whether the definition used should confine the provision to what noble Lords have described as a "revolving-door group". Of course we will debate that at further stages of the Bill, but it would be fair to say that, if one were to limit the availability in the way that noble Lords have proposed, that would discriminate against those patients experiencing their first period of compulsory treatment and whose condition had improved to the point where, although they still required treatment, they no longer needed to be detained in hospital. There is a genuine debate to be had if noble Lords propose a further tightening of the definition.
	Let me make it clear that the patient's responsible clinician cannot make this judgment on his own. An AMHP must agree that all the criteria are satisfied and that a community treatment order is appropriate for the patient. If the AMHP does not consider, for example, that the treatment order would work because of a patient's family circumstances, he or she will not agree to it. The noble Baroness, Lady Meacher, expressed concern that a doctor would not necessarily be involved, in relation to the definition of a responsible clinician. We debated that point on Monday. A responsible clinician will be a highly skilled and experienced professional who has been approved and trained for that particular role; they will have been selected for the patient because they have the right skills to match the patient's particular treatment needs. The responsible clinician will have the overall responsibility for the patient's case and will have the best overall knowledge of the patient's current condition. Of course, the patient will already have been through the process of detention under Section 3—

Baroness Meacher: Does the Minister believe that a psychologist or a nurse could be adequately trained to assess a psychotic patient, the long-term effects of medication, the side effects and so on? If a nurse or psychologist had the training and experience that they would need in order to make or carry the responsibility for the decision about a CTO, they would in effect become a psychiatrist. Does he believe that a little training of a psychologist or nurse would set them up to make such decisions?

Lord Hunt of Kings Heath: Of course, if such a decision were made arbitrarily without the benefit of advice or discussion with the clinical team as a whole, I could understand the point that the noble Baroness is raising. My point is that the purpose of a responsible clinician is that they are the person with overall responsibility for the patient's case. Of course they will have access to other professional advice; I am sure that the noble Baroness would not think that it would be otherwise. The responsible clinician is the person with overall responsibility and that is why he or she is the person to make the initial judgment.
	Some noble Lords have referred to restrictions. The measures are not designed to impose unfair and unjust restrictions on patients in the community. They set an essential framework for the clinical management of patients in the community and for the protection of patients and others from harm. Clearly the engagement with patients, families and carers is important. The code of practice sets out in detail what that means for patients subject to supervised community treatment. A strong and comprehensive package of safeguards is in place for the protection of supervised community treatment patients. The mechanisms to safeguard those patients are exactly the same as for those patients detained under the Act. In taking forward this provision, we believe that we have placed in the Bill the checks and balances that noble Lords are looking for. There is no question that patients will be trapped under compulsion; our proposals go hand in hand with service improvements and the development of community services in general.
	This has been an extremely useful discussion. I hope that between Committee and Report we will have an opportunity to discuss these issues more informally. I hope, too, that I have reassured the Committee that, while we are convinced that this is the right way forward, we want to engage with noble Lords in making sure that we have this absolutely right.

Earl Howe: I agree with the Minister that this has been an extremely good debate and I express my appreciation to all noble Lords who have taken part. It was evident from my earlier remarks that the worry that I have is of both principle and practice. On principle, the simple point that can be made is the comparison between those who are mentally ill and those who have a physical illness. The position for the mentally ill and the risk that they present is, I suggest, very different from the position for people with, let us say, TB. Patients with certain types of TB are a definite risk to the public; despite this, there is no power to treat them compulsorily. That is very different from so-called high-risk mentally ill patients, the majority of whom are still very unlikely to harm anyone. That thought colours my attitude to these proposals as a matter of principle in quite a major way.
	We then proceed to issues of practice and evidence. A lot was said about the evidence; the noble Lord, Lord Warner, argued that CTOs have been shown to be effective. I would be very interested to see the evidence on which he bases that assertion, because I certainly have not seen it. I guess that it is to be expected that the Minister and the noble Lord, Lord Warner, would read the existing evidence somewhat differently from the way I and others would.

Lord Hunt of Kings Heath: The noble Earl may have seen all the research that the department has found, but I am happy to write to noble Lords with any of the research that we have already.

Earl Howe: I am grateful to the Minister for that. If in doing that he can respond to the issue raised by the noble Baroness, Lady Barker, about the study commissioned by the department on the worldwide effectiveness of CTOs, that would be extremely informative. We understand that study to be complete.
	No one has really mentioned the human rights aspect of this. The Joint Committee on Human Rights has expressed its concern about CTOs, particularly in relation to the power of the clinical supervisor to impose conditions without any power for the service user to object. I come back to the fears of patients, which I referred to in my opening remarks. There is an additional concern about the range of controls put on a patient who is to be subject to a CTO. I am thinking particularly about the power to require a patient to abstain from certain activities. The obvious questions are how that will be policed and who will have responsibility for the policing. Will that fall on the family? It is that, in part, that makes service users dub the CTO a psychiatric ASBO. That is a major worry that we need to bear in mind.

Lord Hunt of Kings Heath: If one of the conditions of a CTO is not to take drugs in the community, can it really be described as a psychiatric ASBO? I rather doubt it.

Earl Howe: Perhaps not in that case, but there is a whole range of conditions that can be applied, as we have heard from other noble Lords, and that is where the worry centres.
	The noble Lord, Lord Warner, suggested that the cost of the policy would be less than some commentators fear. I have my doubts about that. Purely as a matter of logic, it seems to me that all patients who are currently detained in hospital need by law to be there. Therefore, it follows that CTO patients will add to the numbers of those in hospital.

Lord Warner: The logic flows along the lines that somebody might be released earlier under a CTO than they might otherwise have been under a Section 3 order. There is at least as much evidence for my view of how this will happen as there is for the contrary view. I suggested that there might be savings in in-patient care because people could be released at an earlier stage.

Earl Howe: That is a very helpful clarification. As has been said, it remains to be seen how the policy will work in practice. I am sure that the Government will get their policy in the end, one way or another.
	One part of the Minister's reply was very revealing. He argued that CTOs should not necessarily be confined to revolving-door patients. He suggested that limiting the CTO to such patients would discriminate against the first-time-episode patient. I am concerned by that. Any measure designed to deal with revolving-door patients has to discriminate against patients on their first admission. If the noble Lord is talking about legal human rights discrimination, I think that he is simply wrong. It is not discrimination when you have two discrete sets of patients—the first-timer and the revolving-door patient—because they are different and have an entirely different status. I shall have to reflect carefully on that part of his reply.
	The experience of CTOs in Australian jurisdictions, as shown recently in an Australian Senate report into mental health across Australia, is that the only things that make a difference are the quality of services and timely intervention. The need for services to be in place before a system of CTOs is put in place was emphasised by the experts from Australia and New Zealand at a recent London conference. We would do well to bear that point in mind.
	I should like to conclude on a constructive note. Noble Lords referred to the views of Professor Tony Maden, and I think that those views should be explored. If the Bill were to provide for CTOs to be limited to a certain group of people, we might have the basis for a constructive dialogue. The conditions that I would look for, which I understand that Professor Maden is also advocating, would be threefold: that there should have been a history of serious violence in the patient; that there should have been a previous relapse because of the patient having stopped medication; and that the patient should be identified as a continuing high-risk patient. If the Government were prepared to look at that proposal, it might well be possible to find a way forward that will command broad support. I say that having taken on board everything that noble Lords have said in this debate.

Lord Hunt of Kings Heath: Clearly I am not going to commit myself to those three conditions, but I do commit myself to engaging in discussion to see to what extent we can find a way through.

Earl Howe: That is very welcome. With that, it is probably time to bring this part of the debate to an end.

Clause 25 agreed to.

Baroness Royall of Blaisdon: I beg to move that the House be resumed for the Question for Short Debate. In moving the Motion, I suggest that the Committee begin again not before 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Bus Industry

Lord Bradshaw: rose to ask Her Majesty's Government how they propose to address the present problems facing the bus industry.
	My Lords, in considering the present situation in the bus industry, I will attempt to cover the way in which the industry is at present organised and run, and my noble friend Lady Scott will, in winding up, deal with the external environment within which buses are operated in this country. We will therefore attempt to be comprehensive and constructive in our approach.
	We are both well aware of the Government's proposals in the White Paper Putting Passengers First, and we hope to add to the debate begun in that document. We are well aware of the continuous decline in the use of buses throughout the country—with one or two notable exceptions—which has been affected only a little by deregulation, despite vigorous propaganda to the contrary. We are well aware that buses have to contend with a road network that is congested with traffic, parked cars and delivery vehicles. We are also aware of the advent of the impact of the UK's adoption of the European Social Charter, which brought with it legislative change that, in the five years leading up to 2008, has taken up a vast amount of management time and unsustainable added costs.
	I plead with the Minister to accept that officials who negotiate on behalf of the UK on drivers' hours do not understand the impact on the bus sector. I ask him to ensure that in all future negotiations officials are accompanied by a professional who intimately understands the industry and what is involved in the details of bus operation. That is not much to ask and it would bring professionalism into the negotiations. We need to be represented at the table by people who really know and care about the outcomes. I would hazard a guess that of the typical 9 to 10 per cent per annum cost increases faced by the industry, about a third emanates from these regulations. That ought to be a matter of concern. Fuel costs, insurance costs, above-average wage rises and congestion account for the rest of the cost increases, but a pause or moratorium in new legislation and the inclusion of a professional input at the negotiation stage would be a great advance.
	I turn next to competition. The White Paper stated that the objective of the deregulation of "on road" competition was to provide more attractive services. Generally speaking, that has not been realised. In many places, territorial monopolists are offering a service of old vehicles, high fares and poor and declining frequencies, while many smaller operators who would enter the market are cowed and afraid to enter because of the likelihood of competitive action by the bigger companies. That is a form of predation by reputation, a practice which should be outlawed by the competition authorities but is not. Indeed, it is actually supported and encouraged by the Office of Fair Trading because of its definition of the market in the economic appraisals that it sometimes—but always too slowly—puts into effect. I suggest that a proper test would be for the Office of Fair Trading to ask whether the reaction of an incumbent operator is consistent with its pattern of behaviour in the rest of the country. If that is not the case, the OFT should rule against any retaliatory action by them against a competitive threat.
	The whole market needs to be opened up, and operators in all transport sectors need to realise that the real competition comes from the private car. Co-operation and co-ordination in the interest of passengers need to be the watchwords, and any proposals for joint services, ticketing, timetables and so on should be subject to the simple test of whether they are in the public interest. As the White Paper claims in its discussion of quality contract schemes, the public interest test is the best way of determining whether arrangements suit the bus user.
	We then move to the subject of who should make the test of the public interest. In my view, it should be a reformed and invigorated version of the traffic commissioners. We must first ask whether the present stature, training and background of the commissioners are right. They also need sufficient locally based staff. I realise that the Government are currently advertising for a number of replacement commissioners. Perhaps that process should be suspended while we are discussing and, I hope, implementing fresh arrangements in the bus industry.
	Perhaps traffic commissioners should in future sit with two deputies, one who may be versed in competition matters and the other an experienced and respected operator from elsewhere in the country. They would guide the commissioners in matters such as whether a quality contract is appropriate and the appropriateness of proposed changes in registrations and their competitive implications so that the interests of actual and potential passengers are given the most weight. That would include the right to vary proposed registrations that run immediately ahead of those of a competitor and other undesirable practices. I know that many good small operators would be willing to engage in the market to give a better service to customers if they could be sure there would be no predatory response from the big territorial monopolists. Such a response would lead very quickly to the small operator going bankrupt because the bus industry is largely a cash-flow business. We welcome the idea, put forward in Putting Passengers First, of empowering the traffic commissioners to summon before them the local authorities that fail to manage the road network to allow buses unhindered access.
	Finally on this subject, there should be stronger powers if an operator fails to maintain his fleet well. I draw the Minister's attention to what has gone on in Greater Manchester, where at last a company that entered the market with a thoroughly unsuitable fleet of vehicles has been put off the road, though not until a great deal of damage had been done. The stronger powers should include banning an operator from routes for long enough to allow a competitor to establish itself in the market. I suggest that the traffic commissioners should use their powers to the extent that operators who have had persistent maintenance failures are banned from routes for two years. A final appeal to the Transport Tribunal would have to be available, but only after clear guidance had been set down about some of these issues.

Lord Snape: My Lords, it is always a pleasure to follow the noble Lord, Lord Bradshaw, who is well known for his knowledge of these matters. I draw your Lordships' attention to my entry in the Register of Members' Interests, which is not entirely accurate. It refers to my employment with the National Express Group but I retired from that body in the past few weeks. However, I have a declarable shareholding in that company.
	I was very interested in what the noble Lord had to say. He started off rather well but was inclined to undermine his own case as he went along. He referred to "territorial monopolies". I used to chair the biggest bus company in Birmingham, so maybe I fell into that category. However, let me explain to him the reality of operating services alongside some of the smaller operators, which he started off by defending. He stopped defending them when he referred to Greater Manchester, where a smaller operator behaved in a way that, I am afraid, many of them do.
	In Birmingham, route 50, on the south side of the city, was one of our busiest routes. Travel West Midlands, the company of which I was chairman at the time, ran a frequent service every six minutes for much of the day. One of the smaller operators came on to the route, as it was perfectly entitled to do under the legislation. It ran number 50 buses with the same destination blinds as our own buses, and tickets and passes were accepted on them perfectly legally and legitimately. But its buses could be described as coming from the bus equivalent to the railway museum. Unlike the drivers of Travel West Midlands, its drivers were not in uniform. Needless to say, union recognition was unheard of in that company; it was sweatshirts, tattoos and a fag in the mouth.
	That is the kind of company that the noble Lord, inadvertently or not, is defending when he urges the free entry of such companies into the bus business. That is exactly the sort of company that caused so much damage that it had to be put off the road comparatively recently by the traffic commissioner in Greater Manchester. Last year's Labour Party conference was held in Manchester, a city I know quite well. I served on the city's passenger transport authority 30 or so years ago.
	I was fascinated—horrified as well—by the operations of GM Buses, the private operator which the noble Lord started off by defending, on the Wilmslow corridor. Exactly the same kind of thing was occurring there. The buses, incidentally, were packed. With a maximum fare of one pound, they were full of students. They did not care that the buses were clapped-out old relics and that the driver was demonstrating his tattoos and his ability to smoke 20 cigarettes a day during the course of an eight-hour shift. They were interested only in getting into the bright lights of the city centre. It was no great advertisement for the bus industry, but that seemed to be the sort of thing that the noble Lord was advocating in the first part of his speech, no doubt inadvertently.
	There are some perfectly legitimate and well-run small operations. North Birmingham Busways is run by many ex-employees of the company I used to chair. They obviously felt they could do better by starting up on their own. They ran rather elderly Leyland vehicles which were kept in tip-top condition, and their drivers were always smartly turned out. They developed some new routes which we had not been business-minded enough to develop as well as running alongside some of our vehicles. No one could have any complaint about that kind of operator. They are, alas, in my experience, in the minority.
	I welcome the Government's document Putting Passengers First. I do not think that any responsible bus operator could object to the proposals and changes that it sets out. I congratulate the department on managing to resist the hysterical—and I choose my words carefully—campaign waged by the passenger transport executive groups which have never forgiven politicians of any hue for not reverting to the pre-1986 situation in vehicle ownership and fleet ownership and in the setting of fares and services.
	I am pleased that the Government resisted much of that campaign, because the campaign was based on a false premise. As the noble Lord indicated, the decline in bus usage started a long time before 1986, for reasons that had nothing to do with the ownership and condition of the vehicles or whether the driver was in a smart uniform. Since the 1950s, congestion and the private car—the two of course go together—have led to the steep decline in bus usage. I am glad to say that this decline has been stemmed in recent years in various parts of the country, although not always with the assistance of some local authority people who profess to be in favour of greater regulation of our bus services and object vociferously to the 1986 Act.
	I must here inject a slightly political note. The noble Lord and his distinguished party, together with the Conservative Party, run the city of Birmingham. I wish he would pop up occasionally to Birmingham and tell some of his colleagues in the so-called "progressive alliance" that removing bus lanes and playing along with the private car network is not a sensible way to run transport in that city. But the progressive alliance is behaving in such a way and—in the opinion of many from that city, regardless of whether they are involved in the bus business—it is about as progressive as the Monday Club. But, no matter, that is the situation in the city of Birmingham. I would be grateful if the noble Lord would use his undoubted talents to change the situation.
	Reverting back to the document, I think it eminently sensible that the voluntary agreements between the operators and the local authorities should be strengthened. I welcome the way in which the Government are attempting to do this. There is a very successful bus priority scheme in Coventry involving PrimeLines Travel Coventry. I mention that because I was the chairman when it was introduced—it is pure vanity on my part—but the scheme has worked very well. Not only did we change the livery of the buses—Coventry City play in sky blue and we thought that would be a good idea—but also, in partnership with Coventry City Council and the passenger transport authority, a very successful prime line service was introduced. However, because of the competition rules we were unable to talk to another operator—a perfectly legitimate operator—which wanted to introduce equivalently modern buses on that scheme. I am glad that there will be provision for sensible arrangements to be made, not to rig fares but to ensure that buses do not leave within two minutes of each other with a gap following.
	I give an unreserved welcome to the changes. I am pleased that the Government have seen sense and are advocating proper partnerships. If passenger transport authorities want to fight a campaign that they can win and that will be supported by the bus industry, they should become highway authorities and stop the kind of nonsense that is taking place under the so-called progressive alliance in the city of Birmingham.

Lord Marland: My Lords, as this is my maiden speech, please indulge me for a moment and allow me to thank the staff of the House of Lords for the very courteous and helpful support that they have given me in the past few months. I have made a few faux pas and I shall almost certainly make a few more, probably during this speech. I am grateful for everyone's help and support. I also thank my sponsors for providing me with this great opportunity to sit here in this magnificent House. I hope that I can make a modest contribution effectively.
	Twenty-five per cent of all European buses are based in the UK—105,000 buses in total—and they are 35 per cent less efficient than they were 20 years ago. These are staggering statistics which demonstrate gross oversupply and almost certainly a badly managed infrastructure. The Government, I fear, have not begun to address the legislation on the salient issues that need to be considered and, sadly, have not yet learnt that government is not a good business manager or long-term strategic planner.
	Regulated enterprise is needed, where investment and commitment by operators are rewarded by long-term contracts or strategic quality partnership contracts, with local authorities operating within guidelines overseen and performance-managed by a government-designated watchdog, which could be traffic commissioners, not nationalisation by stealth.
	Bus operators have carried out substantial investment in the past few years under tightly regulated controls, which, however, are about to be thrown out of the window because of concern over falling passenger numbers. London passenger numbers, though, are increasing. So what will the Government do? They propose to set up a franchising system like that in London and change existing contractual obligations. That is remarkably unfair. London has bus lanes, substantial subsidies from the mayor and, of course, the congestion charge. If the mayor cannot provide services as a result of that and a huge increase in passengers, he should be ashamed of himself. Talking of investment, he should certainly be ashamed of himself. It is quite remarkable that he has purchased a large fleet of bendy buses that he is now about to get rid of. That is a huge cost to the London taxpayer.
	Does any new regulation help to get to grips with long-term problems? Has an emissions programme been established legislating for cleaner and environmentally friendly engines? Has the safety of buses been reviewed? Why is it that not all buses have seat belts, when they are compulsory in cars?
	Is a strategy being developed to incentivise greater use of school buses? Currently we have serious congestion twice a day caused by people collecting children from school. In many parts of the country, parents are reluctant to send their children by school bus because of bullying, a lack of convenient stops and sporadic service. We have to ensure that school buses fulfil obligations to prevent those elements, and that there is a method of incentives to encourage parents to make use of the buses. What thinking has been done to work out what happens to those buses when they are not doing the school run? They currently sit idle in bus parks for the remainder of the day. They should be used for greater community benefits, particularly in rural areas.
	I am grateful to your Lordships and to the Minister for generously allowing me to make these points, which I hope will encourage the Government to develop a long-term strategic plan for the benefit of communities, passengers and bus operators.

Lord Berkeley: My Lords, it gives me great pleasure to follow the maiden speech of the noble Lord, Lord Marland, and to congratulate him on what I think were some very perceptive remarks about transport. He clearly has wide-ranging business experience, which is always welcome in this House, but the knowledge of buses and the transport industry that he has displayed in his modest contribution today is particularly welcome. It is my view that we have very good debates on transport in your Lordships' House. In fact, we have three others this week, as noble Lords will be aware. I am sure that the opposition Front-Bench spokesperson, the noble Lord, Lord Hanningfield, will welcome some support on transport from the Back Benches. We look forward to many more contributions on transport generally from the noble Lord, Lord Marland.
	Was it not interesting how the House emptied as soon as buses were mentioned? That is not the first time it has happened, and I am afraid that it will not be the last. As other noble Lords have said, we have had a disaster with bus deregulation. I have a theory that part of the problem is that, with a few notable exceptions, very few politicians use buses outside London. That is a great shame. I am sure that the Government said in their White Paper that they had an obligation to make provision for the transport of those who cannot drive or afford trains, or who live where there are no trains. Buses can meet change in transport demand much more quickly and cheaply than rail, but, as other noble Lords have said, they have to be reliable, on time, convenient, cheap, comfortable and safe—without too many free-for-alls or an absence of buses, both of which are bad.
	The noble Lord, Lord Marland, mentioned the success of London, which I do not see just as a result of the franchising process. It is linked to the control of traffic lights and bus lanes under one body—this House has debated this topic many times before—and with the information that goes with that. There is a vicious circle. If you have information about the services, that is good, as you know when the next bus is going to come. The new digital displays are great. The congestion charge has helped, too. All those advances could be achieved in other metropolitan areas—and I mean all of them, including congestion charging. They should all be the responsibility of one organisation, as they are here in London under the mayor. That system is extremely successful, and I hope that we can expect legislation soon that will put it forward as an option, certainly for metropolitan areas. I am not suggesting that we go back to the 1980s or 1990s when the councils ran all the services, but local authorities, PTEs or, in the countryside, county councils probably have a much greater knowledge of what services are wanted than has been seen in the delivery of services recently outside London.
	The noble Lord, Lord Bradshaw, mentioned the working time directive, complaining that it adds to the cost to bus companies of drivers. He will know that exactly the same thing has happened on the railways. They seem to have managed to get by, although at considerable cost. We all lobbied at the time to try to get that changed, ditto with the hospitals—there is a school of thought that a significant proportion of the additional costs of healthcare is caused by the directive—but we are where we are. We all have to comply. Frankly, if it is not safe for a train driver to drive trains for more than so many hours a week, it is certainly not safe for a bus driver to do so. We just have to deal with that. If it puts the charges up slightly, people will have to pay them, or perhaps there will have to be a greater subsidy. I do not know.
	I also support the idea of traffic commissioners having greater involvement outside London. There has to be some kind of planning regime in encouraging bus companies to use new routes, avoiding the competition issues that other noble Lords have mentioned and having an appeal mechanism for when things go wrong. The traffic commissioners are underutilised at the moment; they could do a great deal more in the enforcement of road freight legislation. However, we are not talking about that this evening. That is for another day.
	I hope that the working parties that have been set up as a result of the White Paper, which Ministers have recently publicised, will enable there to be a significant change—not all noble Lords are agreed on this, although we are getting quite close—in the use, quality and reliability of bus services outside London. I conclude by asking my noble friend when we can expect legislation to implement all these wonderful changes.

Baroness Scott of Needham Market: My Lords, I am grateful to my noble friend Lord Bradshaw for tabling this topic for debate this evening, not least because it has enabled us to hear the maiden speech of the noble Lord, Lord Marland, who I hope will become a regular member of the small but perfectly formed transport mafia in your Lordships' House. I assure him that he need not worry about making faux pas; we make them all the time. Genuine mistakes are always treated in this House with patience and courtesy.
	Any consideration of transport policy must include some serious thought about buses. Of all the journeys that take place by public transport, 65 per cent will take place by bus—although you would not know that if you simply went by media coverage, which is almost entirely focused on the railways. If one is looking to change travel behaviour and transport patterns in an area, the bus provides a far cheaper and quicker solution to the problems than more expensive longer-term alternatives such as rail or metro systems.
	In his introduction, my noble friend touched on some of the structural reforms necessary to make the bus industry work better, but I have other points to make. Buses still suffer entrenched negative attitudes and we need to work very hard to change that. On that topic, the noble Lord, Lord Snape, rather mischievously misrepresented my noble friend Lord Bradshaw, who, in this House, has consistently pointed out that the failure of deregulation has been that it has not provided the competitive provision of high-quality bus services. No one on these Benches will argue that there is any place for emission-belching buses, driven by nicotine-emitting drivers, with or without tattoos.
	One of the most visible forms of that negative attitude is the relative scarcity of a proper network of bus lanes outside London and a handful of towns and cities. As road space becomes more congested, it makes sense to use it in the most efficient way, and buses, when fully utilised, are the most efficient way of using road space. Reallocating road space will make its use more efficient, will speed up journey times and will send out the message that the bus is the favoured means of travel within urban areas. However, in this country, we do not see much priority for buses. As other noble Lords have mentioned, that is largely because of the division of transport responsibilities that exists in many areas. In London, as we heard from the noble Lord, Lord Berkeley, the mayor has control of most of the transport policy levers. He was able to introduce congestion charging because he was in a position to deliver the improvements to the bus network that were needed.
	Bus use is increasing in towns and cities where there is investment in bus priority because the unitary council has control over the whole package or, in areas such as Nottingham, because the city and county councils have worked together and have a set of shared objectives. Together they have been able to give bus operators confidence in investing in the fleet. PTAs have been slow to develop quality partnerships, for which they have been criticised. However, to a large extent they are not able to deliver their side of the bargain because they do not have control over the highway network, which remains in the hands of the constituent local authorities. Certainly, if road-user charging is to happen anywhere outside London, the relationship between bus provision and the highway powers must be addressed.
	Government must play their part, too. They have been very slow in implementing bus lane enforcement regimes. How often do we see bus lanes, which have been created in the teeth of much local opposition, rendered virtually useless by the constant presence of parked vehicles?

Lord Snape: My Lords, I agree that perhaps the Government should do more, but could the noble Baroness address the issue of Birmingham, where the bus lanes are being rendered useless as they are being taken away by the Liberal/Conservative council?

Baroness Scott of Needham Market: My Lords, in our party we have a policy of localism and, if that is what the local party seeks to do, that is up to it. However, my message, which is entirely consistent wherever I go, is that bus priority is important. Equally important is the fare structure. The Concessionary Bus Travel Bill, currently going through your Lordships' House, deals with some issues that will have a profound effect on the future development of the bus industry.
	There is much evidence that the method chosen for distributing the concessionary fares grant is dangerously inefficient because it is based on local government grant assessments, which are very complicated, and not on the use of buses. That means that many authorities that have worked particularly hard to increase patronage are likely to face higher costs and will not be reimbursed. Therefore, they face a perverse incentive.
	A further problem is that central government have, in effect, put a cap on the amount of extra grant that a single authority can receive from the Government. That means that, if a council receives a grant for a social services project, it will receive less for the concessionary fares. That is the net effect of the Government's policy. It might save time at Report stage of that Bill if the Minister could say now how the Government will address those funding problems. Is he prepared to consider a system that would reward output—for example, the number of journeys made?
	One final point on concessionary fares is that last week the Government announced an increase in the school leaving age to 18, which we on these Benches welcomed. However, that leaves the anomaly that half fares stop at age 14 or 16, depending on the operator. Given that young people, by definition, will not be in full-time employment, would it not be a good idea to include them in the scope of the concessionary fares regime? Not only would that be fair, but it makes absolute sense to encourage bus use among young people at a time when travel patterns, which might last a lifetime, could be established.
	The bus remains the most ready weapon at our disposal to combat the problems of congestion, emissions and global warming, and to improve social inclusion. It does not involve far-distant technology and we could see dramatic improvements at a very modest cost to the public purse.

Lord Hanningfield: My Lords, before I begin my remarks I too congratulate my noble friend Lord Marland on his maiden speech and on his insightful and eloquent remarks. We should all be suitably honoured that he decided to make his opening remarks in this House on the subject of bus transportation. I have no doubt that he will make constructive and thoughtful contributions to your Lordships' House over the coming years. On behalf of his Front Bench, I wish him the best of luck.
	I congratulate the noble Lord, Lord Bradshaw, on securing this debate. Buses are a lifeline to many people. Buses are not just vital now, they are also a key way in which we can tackle congestion and improve the environment in the future. Therefore, it is indeed timely that we are having this debate today, given the announcement the Government made just last month regarding the future of the bus industry. I hope that in the limited time available today, I will be able to tease from the Minister a few more details of how these proposals will work in practice and what they will mean for the wider bus industry—operators and passengers alike.
	I declare an interest as leader of Essex County Council. We have increased the provision of buses and the use of them rather more than the average council in the past few years. I also agree with the remark made by the noble Baroness, Lady Scott, on the funding from local authorities. No doubt we shall return to that during debates on the Concessionary Bus Travel Bill in the coming weeks.
	Before I discuss these proposals, I should like to take a moment to remind ourselves exactly where we are on this issue. The Government produced a 10-year plan back in 2000, in which they set themselves the relatively ambitious target of increasing bus journeys by 10 per cent. That target was to be fulfilled by 2010. They also wished to improve the punctuality of services nationally, but against that they recognised the increasing decline of bus usage over many years, increased prosperity and car ownership, as we have heard during the debate, and the increased cost of travel on buses. I am guided also by a National Audit Office report published in December 2005. It highlighted the fact that, on either method, the Government were unlikely to meet their revised targets of increasing bus usage. The NAO reported on the problems of the administrative costs of procuring bus services, commenting that,
	"if authorities currently tendering for individual routes or small packages of routes adopted a more strategic approach ... they could achieve ... savings".
	The Government recognised that that target was unattainable and it has been revised twice since 2000. We now have a combined target of increasing bus and light rail usage by 12 per cent and of increasing growth in every region. Clearly, something had to give. I am pleased that the new proposals published last month by the Government have at least shown that they are willing to bite the bullet, admit that the Government are failing in this area and bring forward some fresh thinking.
	On the whole, we on these Benches give the proposals a guarded welcome. As ever, the devil will be in the detail. Indeed, I hope that the proposals do not herald a return to the days before 1986, as I think was said from all sides of the House. Indeed, the previous Secretary of State said the same in another place. I hope the present incumbent also shares those views.
	However, we have some reservations about the proposals, particularly any moves to make quality contracts easier to achieve, as we believe a partnership approach is the better way to serve our passengers in the long term. I am pleased that the Government recognised in the past the value of good partnership between local authorities and bus operators. We welcome the fact that there will still be strict tests and that the legitimate interests of bus operators will be safeguarded before any scheme can be approved.
	On the Government's proposals for a new punctuality regime, it is important that bus operators and, for the first time, local authorities are held to account if passengers' services are failing. I have no problem with this. We in local government have a duty to provide the very best local services that we can. Serving our customers must be the watchword in all our future decisions.
	On the review of the bus service operators' grant arrangements, it is again right that the Government look to ensure the best use of public funds. We will have several debates on these issues in the next month or two. We look forward to the Government introducing legislation. Like the noble Lord, Lord Berkeley, I would like to know what the Government's timetable is. I look forward to participating in the debates and seeing how we can together improve bus provision in this country. I welcome today's debate.

Lord Davies of Oldham: My Lords, I express my gratitude to the noble Lord, Lord Bradshaw, who introduced this debate with his customary insight and provided a framework for what has been a lively, although short, discussion on bus issues. I congratulate the noble Lord, Lord Marland, on his contribution and thank him for it. He came to the House with a reputation before him. He spoke trenchantly. He mentioned the words faux pas in the plural; I am not quite sure what the plural of faux pas is—he did not commit any anyway. In any case, we speak Norman French in this House, so the issue probably does not arise. I very much enjoyed his contribution and I hope that he will join in these transport debates, because there is no doubt that we gain a great deal from the exchange of views in the Chamber on these important issues.
	I shall address the significant issues which the noble Lord, Lord Bradshaw, raised, but he was partly engaged by my noble friend Lord Snape, who indicated that it is all too easy to criticise existing operators from the perspective of the difficulties of getting into the market. He also said that a pretty heavy investment in buses is needed for regular and punctual services in urban areas. The disagreement between the noble Lords was more imagined than real. I rather thought that my noble friend was emphasising the urban dimension. I know that the noble Lord, Lord Bradshaw, has a great interest in the problems in rural areas, which in many places can be even more dependent on the bus than urban areas. Nevertheless, my noble friend Lord Snape extracted that which we are used to hearing; namely; that whenever the Liberal Democrat Party is under any challenge to its national policy, it states: "Well, of course, locally, we do things differently". However, that is all part of the exchanges in our debates.
	I was glad that my noble friend Lord Berkeley emphasised information about bus services and new technology. We are on the brink of enormous opportunities in being able to communicate with individuals in all circumstances where they wish to be engaged. Certainly, I cannot think of a situation in which people want more to be in the know than when they are at a bus stop and wanting to know when their local bus is going to appear. Those days when people would have to stand at the bus stop and hope and pray that the bus would arrive in the next hour, although it was timed to arrive in the next five minutes, ought to be behind us. We ought to reach a position in due course where not only are we able to communicate at the bus stop through screens and so on, but where people are able through their mobile phones to pick up signals of just where the bus is and arrange to meet it at a convenient time.
	Punctuality is of the greatest significance for all forms of public transport. Nothing is more frustrating than the waste of time when one is expecting a service and then learns that it is not available, although it is advertised. Punctuality is especially important for buses because people often wait in rather more hostile environments than our railway stations or our airports might provide. Moreover, people who use buses are more inconvenienced by unpunctuality. If mothers with children or elderly people are standing at bus stops in unfriendly weather, punctuality is crucial. My noble friend Lord Berkeley said that we can, and ought to, improve punctuality through the structures which we impose on bus operators to improve performance. I accept his point, and the Government put a great deal of emphasis on it. However, I want to introduce the technological dimension, which will assist us in this area.
	I was very pleased that the noble Baroness, Lady Scott, emphasised the significance of the bus for a large number of our fellow citizens, whose interests we need to put very much to the fore. I heard what she said about bus lanes, but my noble friend Lord Snape indicated how Liberal Democrats can be pretty cavalier in their approach to them in certain circumstances. As the person who introduced the Bill that created bus lanes in London, I can stand here with a good conscience when it comes to bus lanes. I agree that if we are to see regular, punctual and effective services, we need to protect the bus. That means an increase in bus lanes and attaching priority to them. I hope and expect that we will see big metropolitan areas putting greater emphasis on this. Certain areas have introduced light-rail systems, which also use up considerable amounts of road space, but to the benefit of people who live on those routes. However, bus lanes have a role to play. I am glad that that was emphasised by the noble Baroness, Lady Scott.
	Perhaps I may say without appearing evasive that we will discuss funding very shortly. At least two more sessions on the Concessionary Bus Travel Bill remain, at the heart of which is funding for local authorities. We will have time to develop those arguments then. The noble Baroness said that concessions may need to be extended to 16 to 18 year-olds. That is already a given for those who are in full-time education, but the noble Baroness rightly said that if we are to look forward to a day when young people stay in some form of education and training up to the age of 18 and are therefore in a non-earning capacity, concessionary fares will be important for them. So it will, but noble Lords will forgive me if I try to walk before I run. We are some way off making effective the introduction of an age up to which education and training will be compulsory. The question of concessionary travel may be attached as a corollary to it, but the costs involved in the main proposition are substantial. We intend to bring these proposals to fruition in due course, but the noble Baroness will not expect me to produce a time scale just at the moment.
	I was grateful also for the contribution of the noble Lord, Lord Hanningfield, who adopts a uniformly constructive approach in these debates. He always looks for ways in which he can add to, and develop, government proposals in ways which will make them more effective. I am grateful to him for that approach, which he has adopted on many occasions, and, characteristically, he did so again today. However, he, too, will forgive me if I do not go too far into the funding of local authorities: we will exchange views on that in the fairly near future.
	We all know that the deregulation of buses did not produce the anticipated expansion of bus traffic and usage. We have made some progress since what was a period of very steady decline until the 1990s. We have slowed down the decline since we have been in office, but we have not slowed it down enough. There are areas to which we can point with great pride. The noble Lord, Lord Marland, being reasonably controversial in his maiden speech, referred to London in not always glowing terms, although he will recognise that the increase in bus usage is an important and impressive development. However, progress has been made not just in London: York, Cambridge and Brighton are all showing real increases in bus usage, and local authorities can learn a lot from the successes of those towns. It is clear that if we are going to improve local bus services, passengers want them to be regular, punctual, affordable and reliable. We recognise, particularly but not just in our cities, that they have to be safe. There is no doubt that one element of anxiety about using buses is whether there are sufficient safety measures. That is why all modern bus fleets have better communication between the driver and the bases to guarantee some safety, but we need to ensure that happens right across the bus fleets.
	Several constructive points were made about the Government's conclusions published in the document, Putting Passengers First. There is a realisation on our part that our attempts at increasing bus usage did not reap rewards as quickly as we would want; that is why within the framework of the document we considered measures to address poor punctuality and create better partnership working, including, when appropriate, through quality contracts. I think that we can do that. The noble Lord, Lord Bradshaw, has berated me many times in the past that we could be more constructive and imaginative about our quality contracts, and I think that we can. We need to look at that somewhat along the lines of how he has suggested in the past that those contracts could be improved.
	As emerged from many speeches this evening, we also need to give community transport a bigger role. We need the flexibility of that sort of transport. It may be that, as the noble Lord, Lord Marland, hinted, school buses could be used more extensively than they are, certainly in those areas where school buses are being developed on the American system. Yellow buses have been introduced in Surrey and a part of Yorkshire, which is a declaration of commitment to the successful transport of young people—but we may also be able to use those buses more extensively than just on the school run. I know that this day is a long way off, but there is no doubt that we would benefit enormously if our communities depended on, respected and used the school bus as the Americans do. It is such a feature of their localities and such an important part of the successful and safe conveyance of children to school that it gets past a great deal of what is a nightmare for all our citizens, and not just bus users—the congestion of the school run. I quoted the other day in the House the figure that 70 per cent of all British vehicles are on the road at 10 minutes to nine in the morning, which happens to be the peak of the school run.
	I am restricted on time. This has been a short but enormously encouraging debate. I hope that the noble Lord, Lord Marland, will recognise how much we benefit from the exchange of views across the Chamber on these issues. We are a fairly select group, and we could do with a few additions.

Baroness Crawley: I beg to move that the House do now adjourn during pleasure until 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.33 to 8.40 pm.]

Mental Health Bill [HL]

House again in Committee.
	Schedule 3 [Supervised community treatment: further amendments to 1983 Act]:

Lord Patel of Bradford: moved Amendment No. 43:
	Schedule 3 , page 58, line 31, at end insert—
	"In section 121 of the 1983 Act (Mental Health Act Commission), after subsection (4) insert—
	"(4A) The Secretary of State shall, after consultation with the Commission and with such other bodies as appear to him to be concerned, direct the Commission to keep under review the care and treatment, or any other aspect of treatment, of all patients in hospitals, independent hospitals and in such other settings as he may decide who are subject to sections 4A and 4B of the Mental Capacity Act 2005.
	(4B) Where the Commission has good cause to suspect that a patient who is neither liable to be detained under this Act, nor subject to safeguards under sections 4A and 4B of the Mental Capacity Act 2005, is being deprived of his liberty as a consequence of admission to a hospital or an independent hospital, it may—
	(a) keep under review the care and treatment, or any other aspect of treatment, of that patient; and (b) raise any concerns with the appropriate authority.""

Lord Patel of Bradford: I shall speak also to Amendment No. 44.
	Section 120 of the Mental Health Act 1983 empowers the Mental Health Act Commission to,
	"keep under review the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or to patients liable to be detained under this Act".
	The commission's powers of visiting, interviewing patients in private and demanding access to documentation stem from this overarching remit. I should note for the benefit of noble Lords unfamiliar with the detail of this legislation that "liable to be detained" refers here essentially to patients who remain subject to the detention powers of the Act but who have been given leave of absence from the detaining hospital. Therefore, the commission's monitoring remit and visiting powers are at present limited to patients who are subject to the detention powers under the 1983 Act.
	From the very start of the commission's existence, the situation has thrown up uncomfortable problems for its visiting commissioners. In the course of undertaking their statutory duties in visiting hospitals to interview detained patients, Mental Health Act commissioners will frequently become aware of matters of concern relating to informal patients. Although aware that the Mental Health Act Commission remit does not extend to informal patients, commissioners are understandably loath to ignore unlawful, negligent or abusive practices that are apparent to them. Therefore, the practical problem for the MHAC and its commissioners is how legitimately and effectively to raise concerns about vulnerable patients who may be denied legal rights or protections, or are subject to abuse or neglect.
	The most frequently encountered cause of concern is that of unlawful deprivation of liberty of informal patients, sometimes called de facto detention. I will outline two of many examples that I could give to illustrate the sort of situations that commissioners encounter. First, on a visit to an independent hospital that predominantly cared for learning disability patients, a Mental Health Act commissioner found that many staff did not know which patients under their care were detained under the Act and which were informal. The commissioner met with and interviewed two patients at the unit who were not detained before she realised their legal status. Some 37 patients, of whom 21 were legally detained, resided at the hospital in locked apartments, either as sole occupants or in groups of up to six patients. Patients left these apartments, in some cases even to go to the smoking room, only under staff escort.
	It was apparent that the majority of staff were inexperienced and had received little training in the legal aspects of their role. The clinician in charge of the patients' treatment made it known to commissioners that he viewed detention under the Act as unnecessary and stigmatising for his patients. Yet those informal patients whom the commissioner had interviewed by mistake showed an alarming lack of understanding of their rights. One patient's compliance with medication and general care was questionable, but he had little understanding of his rights regarding consent to treatment. Another patient, whose Section 3 detention had recently been rescinded after more than a decade of uninterrupted detention under the Act, said that she was "excited" that the section had been removed, yet the commissioner gained no sense that she appreciated how her rights might have been different, or that she was treated now any differently by the staff.
	My second example involves a commissioner who walked past a locked area containing a single informal patient who was isolated from patients and staff, despite a risk assessment recommending that he receive two-to-one nursing care. The area in which he spent his time was without furniture or apparent means of stimulation or activity. He appeared to have been given a makeshift rattle for diversion. The commissioner noted that inside the room there was an open drain and neither a toilet seat nor soap, towels or even a door to the toilet area. The toilet and bedroom area were cold and smelt of urine and faeces despite, according to the ward manager, regular cleaning. The service manager reported that he was unaware of the situation until we brought it to his attention. This example is just over one year old.
	Those are just a couple of situations with which, according the commission's remit, it has no business to be concerned. In such cases, commissioners may choose to raise their concerns directly with the clinicians or hospital management, who are responsible, although commissioners may not do so officially under Mental Health Act Commission powers. On a very basic level, it may be difficult for a Mental Health Act commissioner to ascertain the facts behind the situation that appears to be of concern. Many hospital managers welcome any comments or observations about their services and may be co-operative in clarifying the situation of patients when asked. However, a recent addition to the Mental Health Act Manual, a reference book to which every Mental Health Act practitioner regularly refers, states:
	"Ward managers should be advised not to engage in discussions with commissioners about the circumstances of patients who are not detained under the formal powers of the Act".
	So we have to walk past people such as those I mentioned in the examples.
	The Mental Health Act Commission has a concordat agreement with the Healthcare Commission to share relevant concerns and information, and the latter is empowered to visit and investigate. However, not only does that cause delay and duplication of effort; the Healthcare Commission staff are not as expert as commissioners on the workings of the Act. Furthermore, while the Healthcare Commission may choose to follow up on the limited information that a visiting Mental Health Act commissioner might be able to pass on to it, the Healthcare Commission is not primarily a visiting body in the sense that the commission is.
	The law currently prevents the Mental Health Act Commission, as a visitorial body, dealing on the spot with issues of basic human rights such as those that I outlined in my examples. Indeed, with a quite dreadful irony, the law at present appears to require Mental Health Act commissioners to walk past those patients who may be incarcerated unlawfully in dirty, cell-like rooms on the grounds that formal powers under the 1983 Act have not been applied to deprive that patient of his or her liberty in a lawful manner.
	I shall provide the Committee with a further example of this dreadful irony from the Healthcare Commission's investigation into Merton and Sutton learning disability services, published today, which noble Lords may have seen reported on the front page of the Guardian. One of many examples provided states that,
	"one man who had no speech, sight or hearing was tied to his wheelchair or bed for up to 16 hours a day".
	The 2003 Mental Health Act Commission biennial report stated that learning disability patients, among others, might be most likely to be subjected to this kind of mechanical restraint. But the commission also pointed out that many of these patients are not formally detained and therefore are not subject to oversight from its visiting commissioners. The safeguard of the Mental Health Act Commission is therefore extended to those who are lawfully detained but not to those who are unlawfully detained. My amendment seeks to change that sorry state of affairs.
	My amendment is simple in its effect. First, it would extend the Mental Health Act Commission's remit to cover patients whose hospital treatment is subject to the new legal safeguards proposed under the Mental Capacity Act by the Bill. This would mean that the commission's visits to hospitals would be able to keep under review the exercise of powers and duties in relation to all patients who are formally deprived of their liberty, whether it is under the Mental Health Act or the new Bournewood provisions of the Mental Capacity Act.
	Secondly, it would allow that when the commission has good cause to suspect that a patient is being deprived of his or her liberty unlawfully—that is, without the use of either the Mental Health Act or Mental Capacity Act powers—it may also keep that patient's care and treatment under review and raise its concerns with the appropriate authority, whether that is the hospital managers, the Healthcare Commission or any other body. For the purposes of keeping under review the care and treatment of all these patients, the amendment will specifically enable the commission to visit and interview patients in private and to inspect documentation.
	I should emphasise that the amendment does not propose that the Mental Health Act Commission's visiting activity be widened to include care homes, although there would be scope for such widening of the remit within the discretionary powers given to the Secretary of State. The intention behind this amendment is, rather, that the commission would be able to concern itself with de facto detained patients and Bournewood patients encountered in the NHS and independent-sector hospitals that it currently visits.
	Finally, the Minister will no doubt know from his brief that the particular extensions to the Mental Health Act Commission's remit called for here could be achieved within the discretionary powers already provided to the Secretary of State within Section 121(4) of the 1983 Act as it stands. It is now over 20 years since the Mental Health Act Commission first requested that the Secretary of State exercise those existing powers.
	Over the past two years the Mental Health Act Commission has been in detailed discussions with the Department of Health, which has been broadly supportive, subject to legal advice, of widening the remit of the commission to include de facto detained patients. Unfortunately, this has not resulted in any change, as they have been unable to find the time to deal with the matter because of other pressing business. I understand that the Department of Health has been rather busy considering various changes to the 1983 Act over that time and that the Minister would want to consider my amendment in the light of other changes being made to the overall legal framework. My amendment may therefore serve as a model of one way to go about this. If the Minister prefers a different approach, the passage of the Bill is a good opportunity for that to be debated in Parliament and, if necessary, tested according to the will of this House and another place. I beg to move.

Lord Hunt of Kings Heath: That was a very useful contribution; I am grateful to the noble Lord for making it. I would like to take this opportunity to pay tribute to the work of the Mental Health Act Commission in keeping under review the operation of the 1983 Mental Health Act. I would commend to the Committee the commission's reports and general work.
	I understand that the noble Lord has put this forward as a debating point. We could not accept the amendments as such. The essential point is that it is our intention, as announced by the Chancellor in his Budget Statement of 2005, to create a new regulator in 2008. This will build on the work and successes of the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection, working across the health and adult social care sector in England. I see the noble Earl, Lord Howe, thinking back to some debates we had on that matter quite a few years ago. No doubt he will remind me in due course of what I said then.
	Regarding the proposals for amending the Mental Capacity Act, the Government are in full agreement with the noble Lord that an essential part of introducing those safeguards is monitoring how they are applied in practice. That is why we have taken a power in Schedule 6 to make an insertion into the Mental Capacity Act to give one or more bodies a duty to monitor and report on the operation of the Bournewood safeguards. Essentially, the monitoring bodies would have powers to monitor and report on the operational safeguards; visit hospitals and care homes; visit and interview people in hospitals and care homes; and require the production of an inspection report.
	The monitoring would require the body to look at protocols and procedures in place for complying with duties placed on managing authorities and supervisory bodies; whether the guidance in the code of practice is being complied with—I thought noble Lords would be pleased to hear that; whether conditions attached to authorisation and requirements to request review of circumstantial change are complied with; and whether appropriate steps are being taken in cases where authorisation has been refused. It is intended that this monitoring body be an integral part of the overall regulation inspection regime for health and adult social care. We intend that the new body should monitor the use of deprivation of liberty provisions in the Mental Capacity Act in England. The deprivation of liberty provisions and the establishment of the new regulator are planned to take effect in 2008. In any interim period between the two coming into effect, the monitoring role will be undertaken by the existing bodies alongside their current roles. We are in very constructive discussions with the three commissions about how that might work in practice.
	We are proposing to use the regulation-making power in paragraph 155 of Schedule 6 to require supervisory bodies and managing authorities to make information available to the regulatory bodies. I hope that that meets some of the issues raised by the amendments.
	Amendment No. 43 would open the possibility of requiring the Mental Health Act Commission to visit all care homes to monitor the Bournewood safeguards. That is not something that we would agree to. Our interim arrangements will enable the Commission for Social Care Inspection, which already visits care homes, to undertake the monitoring of the use of the Bournewood proposals in that setting.
	I turn to the wish of the noble Lord, Lord Patel, to give the MHAC powers to monitor patients whom it considers may be detained but who are neither subject to detention under the Mental Health Act nor subject to a deprivation of liberty under our proposals for the Mental Capacity Act. I say at once that I clearly understand the concerns raised by the noble Lord, but I think that an issue arises in law in saying that such patients, who in effect are illegally detained, should have their cases kept under review. I am clear—this was reinforced by the debate—that it will be for the regulator and, where appropriate, the courts to address these situations. With a single regulator, we want to ensure that quick action can be taken whenever such a case comes to the attention of staff who are responsible for visiting patients detained under the Mental Health Act or deprived of liberty under the Mental Capacity Act.
	I will take the noble Lord's comments into account when taking forward the proposals for a single regulator. Clearly, we will want to ensure that there is even better co-ordination between that part of the new body charged with regulating hospitals and the part that will inherit the responsibility for visiting patients who are subject to compulsion or deprived of their liberty. We will consider further the right range of powers for the new regulator, including how the regulator's enforcement powers should apply. I hope that I have responded positively to some very real issues raised by the noble Lord.

Lord Patel of Bradford: I thank the Minister for his response and for his kind remarks about the Mental Health Act Commission. I genuinely believe that the amendments, or similar wording, would be a step in the right direction to stop the ongoing abuse and neglect of a number of vulnerable people in the mental health system who are falling in the gap.
	I take on board his point about the new health and social care Bill establishing the new regulator, but perhaps I may ask him to reconsider having to wait another year before that Bill comes into place, with another year of abuse for these patients. A year is a long time and, having come to this House, I have learnt that things can change in a year: some Bills are introduced and some are not. Also, in the interim period he may wish to talk to the Secretary of State about the discretionary powers that exist and about whether there may be an opportunity for us to look beyond that and have a further debate on this matter. I believe that we need a further debate but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 44 not moved.]

Lord Patel of Bradford: moved Amendment No. 45:
	Schedule 3, page 58, line 31, at end insert—
	"After section 121 of the 1983 Act insert—
	"121A Mental Health Act Commission: notification
	(1) Hospitals and independent hospitals in which patients are liable to be detained under this Act shall notify the Commission of every hospital admission to specify—
	(a) the age and sex of the patient; (b) the ethnic group to which the patient belongs; and (c) the patient's religion.
	(2) The notification shall specify whether the patient is admitted voluntarily or subject to this Act, or if, subsequent to voluntary admission, the patient is detained under this Act.
	(3) Hospitals and independent hospitals in which patients are liable to be detained under this Act shall notify the Commission of every discharge—
	(a) from the provisions of this Act, or (b) from the hospital.
	(4) In the case of notifications under subsection (3)(a) above, the notification shall specify whether the patient is subject to a community treatment order and where the patient is subject to a community treatment order the hospital shall notify the Commission when this ends.
	(5) Hospitals and independent hospitals shall notify the Commission of the death of any patient liable to be detained under this Act or subject to supervised community treatment detailing—
	(a) the cause of death; (b) the age and sex of the patient; (c) the ethnic group to which the patient belongs; and (d) the patient's religion.
	(6) Further notification requirements may be specified for the purposes of this section by regulations made by the Secretary of State.
	(7) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned.""

Lord Patel of Bradford: I want to explain to your Lordships the background reasons for this amendment. It may surprise the Committee that there is no notification process for admissions, detentions and discharges for people detained under the Mental Health Act. That gives me great concern, given the implications for individuals of losing their liberty under civil powers without the benefit of court sanction. All detentions occur locally without independent oversight from a monitoring or inspectorate body. I am sure that if the Minister were to set up a new mental health monitoring body today, he would undoubtedly wish to give it this oversight.
	Despite the resource constraints, the Mental Health Act Commission interviews 6,000 patients every year out of some 46,000 detentions. Clearly the majority of detained patients—40,000—do not benefit from a check on the legality or probity of their detention. Even the 12,000 or so second opinions that the commission arranges every year do not ensure the wider protection of the fundamental rights and freedoms of all patients.
	Of course, some discharges, following a mental health review tribunal hearing, are recorded. But that affects only a minority of patients. Surprisingly, the MHRT does not keep information on the ethnicity of patients who come before it, so it is not possible to assess any differential impact of MHRT decisions, despite that being contrary to the DCA's own duties under the Race Relations (Amendment) Act. As I said on Second Reading, the lack of a notification procedure means that we have little information on the impact of the Act on any patient group, especially those with heightened vulnerability, such as children, old people and people from black and minority ethnic groups. I shall deal with them briefly in turn.
	Ensuring that the rights of service users—especially children and older people—are protected demands that we know where patients are, how many there are, their ethnicity and their specific health needs. The first but crucial step towards ensuring this protection, and with it the ability to monitor the provision of appropriate care, is the notification of all formal admissions to the MHAC. In addition, a statutory notification of all deaths of patients, whether detained or not, will provide much needed and accurate information on unexpected deaths. I remind the Committee that there are approximately 380 deaths per annum of detained patients when in care, of which about one-quarter are "unnatural deaths"—suicide, other suspicious circumstances, and so on. Despite inquiry after inquiry—for example, that into the death of David Bennett—every year there are still one or two patients who die while being physically restrained. When will we learn the lessons from those unnecessary deaths?
	We have had much debate during these sittings on the needs of children and young people. The detention in hospital of any young person must be a cause for concern, and yet we have no way of knowing exactly how many children are detained. What we do know—and this is from a voluntary monitoring arrangement that the MHAC had in place for the past three years—is that at least 1,308 young people, some as young as 12, were detained on adult wards. That equates to around 370 each year, which is probably a considerable underestimate.
	When speaking to Amendment No. 27 I expressed in great detail my concern about those young people and the appalling level of service they receive, especially young girls, 80 per cent of whom were placed on mixed adult wards where they were vulnerable to sexual and physical assault. Nearly 27 per cent of the young people detained on adult wards were from black and minority ethnic groups—at least three times what we might expect from demographic statistics. Evidence from a survey that the MHAC undertook found that 62 per cent of all children and young people admitted under the Act were placed on adult wards. These children were not only placed in an inappropriate environment that did not cater for their basic educational, recreational and social needs; they were in places where they were liable to be bullied, have illegal drugs forced on them, and where they undoubtedly had to witness some distressing and violent scenes.
	Older people are one of the most vulnerable groups in the mental health care system. They—especially those with dementia and learning disabilities—are often subject to unacceptably low standards of care that result in abuse. This group is the most likely to be de facto detained without the benefit of the protections of the Mental Health Act. We have just discussed these issues under Amendment No. 43. Again, we can be effective in looking after this group of people only if we know how many older patients are detained in hospitals and independent facilities. Currently we do not know.
	Finally, I remind the Committee of what I consider to be one of the most significant remaining scandals in the health and care system, which I spoke about on Second Reading and which I will continue to raise. I refer to the significantly disproportionate rates of admission and detention of people from black and minority ethnic communities in our mental health settings. In preparing for the introduction of this Bill, the Department of Health undertook a race equality impact assessment as required under the Race Relations (Amendment) Act. Although I chaired the advisory committee on that impact assessment, the committee was not responsible for the resultant report. As noble Lords know, that report has been much criticised within the black and minority ethnic community because it did not reflect some of the more serious concerns about the operation of the present Act, concerns which can be clearly understood when we consider the disproportionate rates of admission and detention. Because of the lack of a notification procedure, in 2005 the Mental Health Act Commission with the Healthcare Commission set up and implemented "Count Me In", the first national mental health and ethnicity census. We also undertook one in 2006. This annual census, which I devised, is expected to be repeated each year up to 2010.
	The census confirmed extremely worrying statistics on the disproportionate admission and detention rates for black and minority ethnic patients. For example, black African and black Caribbean people are 300 to 500 per cent more likely to be admitted to mental hospitals and 30 to 40 per cent more likely to be detained under a section of the Mental Health Act. The group termed "Other Black" is most worrying. They are most likely third and fourth generation young black men and are 14 to 18 times more likely to be admitted than white men of the same age range.
	We are becoming all too familiar with these appalling statistics. A number of noble Lords have already referred to them, but they are not the whole story. Although figures for the black community have been most publicised, nearly all minority ethnic groups have disproportionate rates of admission to some extent. For example, people of Irish descent and those from Bangladesh and Pakistan are approximately 30 per cent more likely to be admitted than white British. People of mixed heritage and the "Other Asian" group are 150 to 300 per cent more likely to be admitted. In fact, recent research by my team at the University of Central Lancashire confirms that young south Asian, particularly Muslim, men are beginning to replicate the experiences of young black African and Caribbean men. If we do not resolve this, in a few years we may find that we have another group with extremely disproportionately high admission rates.
	For the Chinese community and, to a lesser extent, the Indian community, admission rates were significantly below average—much lower than might be expected for Chinese people. In this case, the implication is that our mental health services are not responding adequately to the needs of the Chinese community.
	The variation in these figures goes to the heart of the requirement for a comprehensive notification process, especially in relation to religion and first language. Let us not forget that the "Count Me In" census is a one-day snapshot. It is expected to take place annually for only the next three years and is not intended to make up for the lack of a statutory notification system. Despite the fact that ethnic monitoring has been a mandatory requirement for all in-patients since 1995, the overall state of collection, recording and use of data are disgraceful. We know from the Mental Health Act Commission's regular visiting that the collection, recording and use of data are not being sustained on a day-to-day basis at ward level. Yet the census managed a 98.9 per cent collection of ethnic monitoring data by providing training, advice and support to providers. So we know it can be done. A statutory notification procedure would have the same effect—getting providers to do what is required of them—and thus would ensure that the information on which to base service developments is available.
	Over the past three years the Department of Health has implemented the mental health minimum data set, and that must be welcomed. Unfortunately, it is neither comprehensive nor accurate. Ethnicity recording still falls far short of the census: it does not provide the data we need on deaths of patients or include much of the information required for adequate patient monitoring, such as information on language and religion. Even if such information were provided, provision is not statutory. A statutory notification procedure would enable us to track and analyse what is happening to the young and the elderly and to all vulnerable groups. It would act both as an early warning system and as a catalyst for further action. I beg to move.

Lord Hunt of Kings Heath: The noble Lord, Lord Patel, makes a powerful case. I am afraid that my answer is essentially the one that I gave to the last amendment. He has clearly raised important issues of concern. We are consulting on the right regulatory body to bring forward the three commissions that I have already put together. Clearly, issues of powers and duties of monitoring in relation to the operation of the Mental Health Act need to be considered in taking that body forward. We will announce how and when we will make that further consideration in due course, and I will ensure that the noble Lord's comments are taken into account. I take to heart his points about the need for information on various ethnic groups, the impact that such monitoring has on services more generally and the way in which those services are organised.
	Amendment No. 45 would require notification of all admissions of voluntary patients. We see a problem with that in terms of the numbers—tens of thousands of patients with mental disorder were admitted voluntarily. We are yet to be persuaded that this would improve monitoring under the Mental Health Act, but I assure the noble Lord that we definitely see a need for improvements to the functions involved in monitoring mental health legislation, which we intend to realise through a new regulator working across the whole health and adult social care sector.

Lord Patel of Bradford: I thank the Minister for his remarks. It is important that the census of all in-patients in the mental health system should achieve what we want it to. It monitors them now quite easily without service providers having any extra burden. We managed to get a one-day snapshot study, but we need the situation to be monitored on a continual basis for several reasons. Not only would that monitor trends and provide important information and understanding on where patients who should be detained are not detained and where patients who should not be detained are detained, but surely any practitioner who wants to put together a package of care needs such basic information. If they were treating me, they would need to know that I am Hindu, that I am a Yorkshireman, how old I am, where I come from, and what makes me tick. This is very basic information, which it should not be a burden to collect and record. I think that undertaking the census has improved practice across the board. I urge the Minister to reconsider and have further debate on this area but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 46 not moved.]
	Schedule 3 agreed to.
	Schedule 4 agreed to.
	Clauses 26 to 30 agreed to.
	Clause 31 [Organisation]:

Earl Howe: moved Amendment No. 47:
	Clause 31, page 31, line 40, at end insert—
	"( ) In section 70 (applications to tribunals concerning patients subject to hospital and guardianship orders), at the end insert—
	"(2) An application under subsection (1) may be made on the patient's behalf by his nearest relative.""

Earl Howe: I will also speak to Amendment No. 48. Under the Mental Health Act 1983, the nearest relative is one of the major safeguards of the patient's rights. The person who is identified as the nearest relative has extensive powers in relation to the detained patient in both civil and criminal cases. Where a patient has been admitted to hospital for compulsory medical treatment via the courts or via prison, the nearest relative has the power to apply to the mental health review tribunal on his behalf. This is an important safeguard, especially where the patient lacks capacity or is simply too unwell to exercise his rights to appeal against detention.
	However, this does not apply to restricted patients, who under the current Act have no nearest relative. This means that many restricted patients who fail to exercise their right to appeal to the tribunal will not have their cases legally reviewed for three years, which is the point at which the Home Secretary has a duty to refer them to the tribunal. Only restricted patients lack the safeguard of having a nearest relative and I believe that there is a strong case for putting them in the same position as other Part III patients. That is what Amendment No. 47 seeks to do.
	The purpose of Amendment No. 48 is to give the mental health review tribunal the power to order the transfer and leave of absence of restricted patients. That proposal originates from a recommendation made by Professor Genevra Richardson's expert committee. She said about the current arrangements:
	"Our concern first sprang from our awareness that it was a considerable inhibition on moving patients across or down levels of security within the hospital system ... we now have a tribunal that can order the discharge of someone with a restriction order but we do not have a tribunal that can order the essential precursors to discharge, the leave and the transfer. So we felt that there was a potential problem there with compliance with Article 5(4)".
	At the moment, the power to order transfer and leave of absence rests solely with the mental health unit of the Home Office. That is an administrative body whose decision-making has been widely criticised for rejecting the risk assessments made by professionals and for over-estimating levels of risk leading to patients being stuck in inappropriately high conditions of security. Many feel, and I am one, that it would be more appropriate for such decisions to be taken by a judicial rather than an administrative body.
	Underlying that is the desirability of providing an enforceable right to treatment in the least restrictive environment, consistent with the needs of the patient and the need to protect the public. The problem of patients stuck in inappropriately high conditions of security is long standing and, while it is welcome that the Government plan to increase the provision of medium and low secure facilities, the decisions surrounding these transfers are of such importance to the individual's liberty that they really should lie in the hands of the mental health review tribunal.
	The tribunal is best placed to make decisions about the level of security that a patient requires, having heard all the medical evidence with representations from the patient. So I put it to the Minister that it is both wasteful and unjust not to allow the tribunal to act on that information. Of course I do not say that the Home Office should not continue to have oversight of the individual restriction order cases. The Home Office is the place where the continual history of a long-term dangerous patient is located and it should retain that oversight role. However, the decision-making arrangements need to be revised. I hope that the Government will be sympathetic to these amendments and I beg to move.

Baroness Ashton of Upholland: I am addressing these amendments because I have responsibility for the tribunal service within the Department for Constitutional Affairs and because the mental health review tribunal falls within my remit. In this context, I am also responding on behalf of the Home Office, for this falls fairly and squarely within its remit. I am grateful to the noble Earl for so succinctly putting the issues relating to Amendments Nos. 47 and 48 before us.
	As the noble Earl said, the nearest relative provisions of the 1983 Act do not currently apply to decisions made in respect of restricted patients, so a question would automatically be prompted by the proposals in Amendment No. 47 about whether we ought to be looking to extend those principles to apply to the restriction order in all circumstances. It is a fact that the regime for the management of restricted patients is intentionally different from that for unrestricted patients. The noble Earl alluded to that in any event. Restricted patients are people convicted of serious offences whom the courts have found to pose a risk of serious harm to others, or if they are serving prisoners transferred to prison for specialist services. They are people who, instead of being required to serve a prison sentence, have been ordered to be detained in hospital subject to special restrictions for the protection of others. As the noble Earl also indicated, the decision on the discharge of restricted patients is made either by the Home Secretary or by the tribunal. He will know that the 1983 Act allows the tribunal to make that decision on the basis of a European Court of Human Rights decision, and that is accepted and part of our legislation.
	It is not to me apparent that we would derive much benefit for the restricted patient in being able to divert to the nearest relative the rights of reply to the tribunal. I hear what the noble Earl said and, as ever, I will think about it. However, in the case of a transferred prisoner, the effect of a tribunal's finding that he is not properly detained in hospital is return to prison. The nearest relative provisions are not relevant to the management of a restricted patient. These are patients required by law to be managed on the basis of the need to protect others from serious harm. I fear that we would not be able to achieve what the noble Earl wishes to achieve in Amendment No. 47. However, I will, as I have indicated, think about the issue in our deliberations between now and Report.
	On Amendment No. 48, I acknowledge the work of Professor Richardson, but of course there is the recommendation of the pre-legislative scrutiny committee to allow the tribunal to be given the power over the transfer and leave of absence of restricted patients, which fundamentally alters the arrangements for risk management of restricted patients, taking away from the Home Secretary his sole responsibility for decision-making on the risk management of detained and restricted patients. As I understand it, the Home Office takes 2,500 decisions annually on the leave and transfer of restricted patients. I hear the noble Lord's concern about the Home Office's role, but in the majority of cases applications are dealt with and responses delivered within the target dates, which are three weeks for leave of applications and two months for transfers.
	I am not entirely convinced that the tribunal, with due respect to its work, could improve on that performance without a vast increase in resources. It currently considers about 15,000 applications for discharge on a once-a-year basis. The management of restricted patients is complex. It is not an accident. It is the result of a balance between the rights of the public to be protected from serious harm and the rights of the patients. As I have indicated, the courts can divert restricted patients or offenders convicted in the courts from prison sentences to be treated in hospital. Diversion under a restricted hospital order means that there is no tariff to serve; there is no element of punishment in that sentence.
	The function of the Home Secretary and the tribunal is, if I may describe it as such, a constructive tension. The Home Secretary's responsibility is to protect the public, balanced by the tribunal's power to discharge the patient from detention if it is not satisfied that that is justified by the patient's disorder and the risks that arise from it. Checking the figures today with officials, I understand that 75 per cent of restricted patients are discharged.
	The effect that we are conscious of is that, if the tribunal were given the additional responsibility to regulate the pace of the patient's rehabilitation by being able to order, transfer and lead for the patient, we would be in danger of undermining the Home Secretary's power to protect the public—the constructive tension to which I referred. We think that, because the Home Office is dealing with matters effectively, the current system works well, and that the tribunal's ability at the end to be able to discharge the patient under the 1983 Act is the right way to go forward. I will of course consider the matter further with colleagues in the Home Office, but at this stage I believe that the balance is right. I hope that the noble Earl will withdraw his amendment.

Earl Howe: I am grateful to the Minister. I take serious note of the points that she made, which in all conscience I must reflect on. I thank her for a full reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 48 not moved.]

Earl Howe: moved Amendment No. 49:
	Clause 31 , page 32, line 4, at end insert—
	"( ) In section 78 (procedure of tribunals), after subsection (9), insert—
	"(9A) The Lord Chancellor shall provide for membership of Mental Health Review Tribunals to include the following groups of people—
	(a) service users; and (b) carers; and to take full account of issues of diversity including ethnicity, gender and religion.""

Earl Howe: This amendment and Amendment No. 50 deal with the membership of the mental health review tribunal, which rarely includes people who have experienced a mental illness or others who may have a lot to offer from their experience of mental illness and mental health services. There is a strongly and widely held view that as a matter of principle the lay member of the tribunal should wherever possible have experience of mental health services as a user or carer or a volunteer or employee who works with and can represent any of those groups.
	That would be consistent with, for example, employment tribunals, which contain representatives of both management and employees. It would also be consistent with increased service user and carer involvement in the provision of mental health services. For example, many mental health trusts such as the South West London and St George's Mental Health NHS Trust are recruiting and employing service users in clinical teams.
	I also propose that tribunals should include members from the black and ethnic minority communities. If we think it important, as I am sure it is, that the tribunals are able to take full account of a person's culture and circumstances, I suggest to the Minister that that idea should be adopted as standard practice. Cultural differences can create difficulties between patient and clinician and thus cause problems in diagnosis and treatment. In some black communities symptoms of mental illness might be manifested through the suggestion that there might be possessing spirits or that inexplicable misfortunes have occurred. Tribunals need to take full account of a person's culture and circumstances and the language in which they most often communicate.
	BME representation on the tribunals can therefore be extremely helpful, wherever that is appropriate. That is especially important when we bear in mind that at present, African-Caribbean people are more likely to be detained and receive higher doses of medication than the population as a whole.
	It is worth reminding ourselves that the Government's action plan Delivering Race Equality in Mental Health Care includes among its goals for 2010 less fear of services among BME communities, a reduction in the rates of compulsory detention of BME service users, and a more active role for BME communities and BME service users in the planning and provision of services. Appropriate BME representation on tribunals would play a significant part in meeting those goals.
	Tribunals should also specifically contain at least one person of the same gender as the person whose case is being heard. There are particular gender issues to consider, including, in respect of medication, sexual functioning, menstruation and risks to a foetus during pregnancy.
	Equally, where a tribunal meets to consider the needs of children and young people under 18, it surely must include the expertise required to determine those things. As has been said already, children and young people under 18 are not adults; they process and react to issues in a different way. Normally they are dependent on adults for their daily living arrangements, and very often those adults are their parents. Practitioners who specialise in child and adolescent mental health will have the ability to assess the young person's developmental level and social circumstances and be aware of their educational needs when determining whether the young person requires compulsory treatment or should be discharged.
	Where the child or young person is subject to aftercare under Section 117, at least one member of the tribunal should have specialist knowledge of child and adolescent mental health services and children's services and what should be made available to under-18s when placing conditions prior to discharge.
	I hope that the Minister will look constructively on these proposals. I beg to move.

Lord Patel of Bradford: I support the amendments. In respect of Amendment No. 49, we have heard it stated many times in our debates on the Bill that the chance to review mental health legislation comes about every 25 years. We have also heard, especially from Ministers in relation to setting principles in statute, that over the course of these quarter centuries, societal values may change and statutory requirements become dated.
	In the case of the statutory requirements relating to the constitution of the mental health review tribunal, we have a case in point. The current statute requires multi-disciplinary input to the lay membership of tribunals, with particular emphasis on such persons "with experience in administration" or "knowledge of social services". I have no wish to suggest that persons falling within these categories are not important or needed—indeed, I fall into at least one of them myself—but were we to draft this today, it would be inconceivable that we would not specifically include, and give priority to, service users and carers, who are "experts by experience".
	Furthermore, given the over-representation of black and minority ethnic patients under compulsion and the widespread suspicion of services in the black community, this is a good opportunity to underline the importance of taking into account diversity issues in the appointment of tribunal members. I hope that we will grasp this opportunity to update the statutory language around this part of the Act.
	In respect of Amendment No. 50, I can say with some certainty that noble Lords need no reminding of the quite shocking examples and statistics that have been provided throughout our debates about the widespread placement of children and adolescents on adult wards, with inappropriate provision made for their safe and effective care and treatment.
	The Government recognise the problem that children and adolescents may be detained in adult facilities for want of an appropriate CAMHS bed, but it is a problem that has not yet found resolution. The amendment addresses one side effect, if you will, of the often inappropriate placement of child and adolescent patients.
	Mental health professionals working on adult wards where children are inappropriately placed may find themselves disempowered by their own lack of skills and knowledge in child and adolescent mental health care. This can place children in an additionally vulnerable position when it comes to the deliberations of the mental health review tribunal, because the tribunal may not, in its dealings with staff at the detaining authority, meet with the relevant expertise that should be available to it at its hearings.
	I therefore support the amendment, which aims to ensure that the determination by a tribunal of whether compulsion under the 1983 Act is appropriate for children and adolescents involves professionals with appropriate expertise in these areas.

Baroness Ashton of Upholland: I am very grateful to noble Lords who have spoken in this debate. As I indicated earlier, I am especially interested because the work of the tribunal service now rests with me within the Department for Constitutional Affairs. One of the things that I have been doing is reviewing the role of non-legal members of tribunals, and I have had the good fortune to meet more than 100 members who we classify as non-legal members—I am looking for a better term than that. Included in that description are medical professionals of one kind or another and those who sit on the Mental Health Review Tribunal.
	I have the appropriate reactions of a Minister to statute—that it is very difficult to change it—so I do not want to accept this amendment, but I share the concerns of noble Lords. I looked at the minority ethnic breakdown in the statistics about those involved in mental health review tribunals, and the membership is 76 per cent white, 9 per cent Asian, 2 per cent black, 13 per cent not stated and 0.004 per cent Chinese. We need to think very carefully about the flexibility and membership of the tribunal service. One of my ambitions is to reflect the breakdown and mix of our society better in the tribunal service in terms of ethnicity and, going back to Amendment No. 49, the mix of those who use and understand the service. There is nothing between the Department of Health and my department on this issue—my noble friend Lord Hunt of Kings Heath is nodding. We want to achieve that mix. I do not want to put that in statute, but we will do the best we can.
	Having chaired a health authority, I have a lot of experience of the issues and needs of child and adolescent mental health services and of trying to develop a good service right across the country to support children with these problems. Noble Lords will no doubt have talked far longer than I can about their questions and concerns. It is difficult to commit in statute that one could immediately get to the point of being able to put somebody with that expertise on the panel in the tribunal service on all occasions. I cannot do that. What I am prepared to commit to is that no child should appear before a tribunal unless he has been seen or supported in some way by someone with the expertise to reflect the fact that he is a young person, an adolescent, under 18 or so on. That might be done in the process of getting to the tribunal by having the opportunity to meet somebody from the service, it might be done by somebody on the panel or there might be other opportunities. My ambition is to get to the point where it is set in stone that that facility is available. I do not have enough people to be able to offer that now, but I will offer to make sure that from now on children who have not had the opportunity of that expertise do not appear before the tribunal. Noble Lords will appreciate that that is a huge commitment.
	I ask the noble Earl to withdraw the amendment because I cannot put that commitment in statute. I also ask him to recognise that I share the ambitions in both the amendments in this group. I see that the noble Lord, Lord Newton of Braintree, who is president of the Council on Tribunals, is in the Chamber. He is the key person working with me on this, and we are committed to achieving it. I am sure that we can because behind the amendments are serious and important issues that we need to address.

Earl Howe: That statement of intent from the Minister is very welcome. I am sure that the Committee is glad that she is marching with us on this one. It would be doubly good if, at some point, we could hear from her about how she and her officials plan to deliver that.

Baroness Ashton of Upholland: I am sorry to interrupt the noble Earl, but he is right to suggest that. We plan to produce a strategic document about the role and future of the tribunal service very shortly, and that will provide opportunities for noble Lords to come back to me on the commitments that I have made.

Earl Howe: I am most grateful and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 50 not moved.]
	Clause 31 agreed to.

Earl Howe: moved Amendment No. 51:
	After Clause 31 , insert the following new Clause—
	"Referral to tribunal by hospital manager
	After section 66 of the 1983 Act insert—
	"66A Referral to tribunal by hospital manager
	(1) Where a patient who is admitted to hospital in pursuance of an application for admission does not exercise his right to apply to the Mental Health Review Tribunal under section 66(1) above, the managers of the hospital shall, before the expiration of the period for making such application, consider whether—
	(a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made.
	(2) In considering whether there is any good reason why an application under subsection (1) above should not be made, the hospital manager shall have regard to the wishes of the patient.
	(3) Where the hospital manager reasonably believes that the patient lacks capacity and that there is no good reason why an application under subsection (1) above should not be made, he shall refer the patient's case to the Tribunal unless an application has already been made.""

Earl Howe: The purpose of the amendment is to address a significant gap in the mental health review tribunal system in respect of patients who do not apply for review of their cases because they lack the mental capacity to make their own decisions. Although such patients enjoy a right of appeal to the mental health review tribunal, in practice the right is not exercised because the patients themselves fail to appreciate the options available to them. In certain cases this has meant that mentally incapable individuals have received inappropriate treatment or endured wholly disproportionate restrictions without the benefit of effective review because no application was made on their behalf.
	The amendment seeks to remedy this protection gap by imposing a duty on hospital managers to assess patients who have not exercised their right to apply to the tribunal and determine if there is any reason why an application should not be made, having particular regard to whether the patient has the mental capacity to take such a decision themselves. The draft clause creates a presumption that hospital managers should refer such cases to the tribunal unless there are good reasons not to. The duty on managers to assess non-appealing patients, together with the presumption that referral should be made, would help to ensure that patients lacking capacity would enjoy the benefits of the tribunal review. At the same time, the use of a presumption would also avoid the dangers of automatic referrals of all patients lacking capacity as there may well be circumstances when a patient lacking capacity has none the less clearly expressed a wish not to undergo the appeal process and its associated assessment procedures. I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Earl for raising this issue. Noble Lords will know from their deliberations on the Bill that all civil patients have the safeguard of a nearest relative. The nearest relative has the right to discharge a patient at any time and, where that discharge is barred, the nearest relative can apply to the tribunal to challenge that detention. The right of a patient to apply to the tribunal and the additional rights of the nearest relative to apply must be explained to the patient by the hospital managers. That is a statutory requirement under Section 132. However, if the patient does not use the right to apply to the tribunal, Section 68 provides the backstop for patients, ensuring that all unrestricted patients, not only those who lack capacity, have the safeguard of an independent review of their case.
	We think the time periods within Section 68 are appropriate. They ensure that a civil patient who has not applied for a tribunal or otherwise been referred will be referred by the hospital managers after an initial six months of detention. We have expanded the group of patients to whom this applies to ensure that it includes patients who remain on a Section 2 by virtue of a County Court procedure to displace their nearest relative under Section 29. The period spent under Section 2 will, with the new provisions, be taken into account when calculating the six-month period to referral. This is an important move; the 28 days is part of the six months. In addition, all unrestricted patients will be referred to the tribunal every three years, as the noble Earl has indicated, if they are adults, and every year if they are under 16.
	The Bill introduces the option to reduce these periods—which, in a sense, is what the noble Earl is after—so that the backstop safeguard of a tribunal for all patients who do not apply will occur sooner. The Secretary of State and the Welsh Ministers will use this power when they are certain that the resources in the NHS, local authorities and the mental health review tribunal can be made available without affecting the provision of mental health services to patients with mental disorders. The commitment we make is that we will achieve that through a combination of the Department of Health and the Department for Constitutional Affairs. It is our intention to reduce the time although I am not able at this point to give noble Lords a timescale for it.
	The problem with the amendment is that we would almost certainly end up with a more or less immediate increase in tribunal referrals, which may or may not be wanted by the patients concerned, and require hospital managers to arrange for every detained patient who does not apply for a tribunal to be assessed to determine whether they have the capacity to make such an application. In other words, rather than relying on managers to keep an eye out for patients whose lack of capacity may require steps to be taken, it forces managers to assess capacity indiscriminately; and because capacity is, of course, specific to particular decisions, it is not the same as assessing the capacity to consent to treatment, for example. So it should not be assumed that this assessment will be carried out anyway as a routine part of patient care.
	The noble Earl makes a good point about the length of time. We think the best way to address that is, within the provisions of the Bill, to consider reducing that time when we are able to do so—we commit to do that—and in that way achieve what the noble Earl wishes. However, it is important to ensure that we have safeguards for mental health patients, including those who lack capacity. We think the provisions in the Bill provide the most effective way of recognising our desire to reduce the timescale. I hope the noble Earl will feel able to withdraw his amendment.

Earl Howe: Once again, that is a helpful reply. I do not doubt that the Minister is totally sincere in what she says, and that the Government intend to reduce that period when they can. I would welcome that. I bear in mind, however, that since 1983 we have had a provision in the Act to enable the Secretary of State to reduce the three-month period, and nothing has happened under successive Governments, so, with the best will in the world, intentions can fall by the wayside. Nevertheless, I shall reflect carefully on what the Minister has said, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 51A not moved.]
	Clause 32 agreed to.
	Schedule 5 agreed to.
	Clauses 33 and 34 agreed to.

Earl Howe: moved Amendment No. 52:
	Before Clause 35 , insert the following new Clause—
	"Obstruction
	After section 129(2) of the 1983 Act insert—
	"(2A) Any person who offers any inducement or makes any threat with a view to improperly influencing any decision required to be made by a person under this Act shall be guilty of an offence.""

Earl Howe: The purpose of this amendment is to extend the scope of the offence of obstruction of persons performing functions under the Act to include inducements or threats, if made with the intention of improperly influencing a decision. The rationale for this broadening of the offence is that it would strengthen the position of approved mental health professionals in resisting pressures from managers or more senior colleagues to act in a particular way. The pressure would have to be improper. In other words, it would not preclude the strong expression of legitimate professional opinions, but would include any threat to the AMHP's job security or promotion prospects.
	This is part of a wider issue about the independence of AMHPs. There is a widely held view that recruitment of NHS-employed health professionals as AMHPs will further exacerbate the erosion of independence that AMHPs should have from the hospital and the doctors, a process that is already occurring as a result of the secondment or transfer of approved social workers to mental health trusts. The ASWs are, technically, still employed by the local authority while acting in their statutory role, but in many cases their managers have also been seconded or transferred to the trust, so the independent role of local government in the compulsory admission process, which has been a basic element of that process since 1959, is becoming largely a fiction.
	As a result, the process no longer meets the current human rights standard for the making of decisions involving loss of liberty, in that the two most powerful decision-makers, the ASW and the consultant psychiatrist, may well be close colleagues in the same team, both of them responsible for the trust that runs the hospital to which the patient would be admitted. The Government acknowledged that at the beginning of the review of the legislation in 1998, and their solution was to require all initial decisions to be confirmed by an early tribunal hearing. Now that this proposal has been abandoned, it is essential that corrective action is taken to ensure that the process meets accepted standards for impartiality and objectivity.
	As part of that, the legal position of AMHPs needs to be strengthened to protect them from improper influence from trust managers or more senior trust colleagues. The Government have dismissed that concern, but, having spoken to members of the Mental Health Alliance, I have no doubt whatever that it is a real issue. The amendment would ensure that AMHPs are, and are seen to be, independent of the doctors and the hospital, that their decisions cannot be overruled by the local authority and that they are able to exercise their professional judgment, free of improper influence. I beg to move.

Baroness Royall of Blaisdon: I am aware that the introduction of the new AMHP role and the loss of the requirement for the individual to be employed by the local authority have led to concerns that pressure could be applied to AMHPs acting on behalf of a local authority, but employed by the same trust as doctors carrying out mental health assessments or hospital managers dealing with bed shortages. I understand the rationale outlined by the noble Earl, Lord Howe.
	The amendment would make it an offence for any person to offer an inducement or make a threat with a view to improperly influencing a decision made under the Act. That could include patients and their relatives acting inadvisably but in reaction to difficult circumstances. I am sure that noble Lords would agree that in most cases it would be inappropriate to criminalise that behaviour. Instead it should be dealt with sensitively on an informal basis by the professionals involved.
	Of course, it is a different matter if a healthcare professional or other NHS or local authority employee seeks to influence decision-making improperly through bribes or threats, but existing legislation makes such behaviour an offence. Such incentives would amount to misconduct under an employee's contract of employment and could lead to disciplinary action. It could also amount to harassment under the Protection from Harassment Act 1997. Behaviour intended to stop an AMHP, or any other professional, from making the independent decision that they are required to make under the Act could contravene Section 129(1)(d) of the Mental Health Act. That prevents someone obstructing a person in the exercise of their functions under the Act. Clearly, there are already legal provisions that make the improper influence of a public servant an offence. In addition, such behaviour would be extremely bad practice and should be properly addressed in employers' behavioural standards and professional codes of conduct.
	I note the concerns of the noble Earl about independence. We believe that training for key professionals will address the independent decision-making functions of individuals under the Act. Training for approved clinicians, who will take on the current functions of the responsible medical officer, will cover the role of the AMHP, and particularly the AMHP's duty to make an independent decision about whether an application should be made. The training and approval criteria for AMHPs will stress the important skills required to express an independent view.
	The noble Earl spoke of the circumstances under which professionals who consider whether a patient should be detained should work in the same team. I noted his concerns. The code of practice for England will state that an AMHP should not be in a direct line-management relationship with either of the examining doctors; but to say that they must all work in separate teams goes against years of attempting to try to integrate services and could lead to unnecessary delays in assessing a patient.
	Social workers increasingly work within combined social services health teams. In future, teams are likely to be combined in other ways, such as in-patient and crisis services. One of the advantages of broadening the professional groups that can become AMHPs is that it will be easier for crisis resolution and home treatment services carrying out an urgent assessment to progress that to Mental Health Act assessment, without having to involve a professional from outside the team, which can cause distressing delay and repetition of assessments for patients. In addition, requiring the AMHP and examining doctors to work in different teams could make it more difficult to identify appropriate assessors, causing distressing delay for patients.
	I believe that the Mental Health Act and the wider legislative framework, in conjunction with professional codes of conduct and employers' behavioural standards, are sufficient to guard against improper influence of professionals making decisions under the Act without the need for additional legislation. Therefore, I invite the noble Earl to reconsider the amendment.

Earl Howe: That was a helpful reply, on which I shall reflect carefully. However, this is an area where theory sometimes tends to become detached from practice. The problem is that the professional status within an organisation of relatively junior employees—social workers, nurses and occupational therapists, for example—who are likely to act as AMHPs will be vastly less than that of the consultant psychiatrists, some of whom will carry senior management responsibilities. Many seconded ASWs already report that they have come under great pressure to act, or not to act, in a particular way. I suggest that members of health professions are likely to be more vulnerable to such pressure. Such things can be hidden; they do not necessarily come out; and it is very difficult to guard against them, whatever codes of practice are in place. Nevertheless, I take on board all the points made by the Minister and I beg leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.
	Clauses 35 and 36 agreed to.

Earl Howe: moved Amendment No. 53:
	After Clause 36 , insert the following new Clause—
	"Right to move hospital
	After section 19 of the 1983 Act (regulations as to transfer of patients) insert—
	"19A Right to move hospital
	(1) All patients and their families must be informed that a patient can apply to move from one hospital to another if there is a good reason to do so, taking into account their family, cultural or medical needs and wishes.
	(2) All applications by patients shall be recorded.
	(3) If an application is refused reasons shall be provided to the patient in writing and, subject to the wishes of the patient, to the nearest relative and any relatives (as defined in section 26) as he shall specify.""

Earl Howe: The amendment brings us back to an issue to which we have referred a number of times during Committee; namely, the particular difficulties encountered by mental health patients from black and ethnic-minority communities. Inequality in mental health services between black people and the majority white population has been the subject of debate and study for decades. It is well documented that people from BME communities, African and Caribbean people in particular, fare worse under the British mental health system than under many others. Most ethnic minorities tend to live in cities, but patients from ethnic minorities are often transferred to hospitals in rural areas, where there are very few black staff, which often leads to black patients feeling alienated.
	A black patient who has lived in an urban area all his life and who is then transferred to a remote rural hospital could well find it alienating and frightening, especially as staffing in rural areas is rarely diverse. Recommendation 19 of the report of the David Bennett inquiry stated:
	"All psychiatric patients and their families should be made aware that patients can apply to move from one hospital to another for good reason, which would include such matters as easier access by their family, a greater ethnic mix, or a reasoned application to be treated by other doctors. All such applications should be recorded. They should not be refused without providing the applicant and their family with a written reason".
	The Government accepted this recommendation and made it a priority policy area in their response to the Bennett inquiry report and in the Delivering Race Equality in Mental Health Care action plan, published in January 2005. However, since its publication, the action plan has been beset with controversy, not least because the £16 million allocated for the implementation of the programme has not reached targets set out in the report. Prompted by the Mental Health Alliance, I therefore propose that this provision should be set out in statute to ensure that it is prioritised by policy-makers. It is also crucial that the right to move hospital is clearly stated in the Mental Health Act to ensure that clinicians and hospital managers are left in no doubt that it has statutory force which must be followed.
	The Government's response accepted in principle that every request should be considered carefully and receive a reasoned response that takes into account the needs of the service user and their assessed best interests. A BME patient's wish to be close to their family, or to be cared for in a more ethnically mixed environment, should be listened to, recorded and met unless there is a good reason not to meet it. It is good practice for refusal to be explained in writing. That is the simple purpose of this amendment. I beg to move.

Lord Patel of Bradford: I have put my name to this amendment because the suggested change in the law would be an empowering measure for patients. It would provide a counterweight to the broad powers over patients that are given to detaining authorities.
	It is not uncommon for a patient or relative to express a wish for a transfer between hospitals, whether this is to be nearer home or because of a preference for one hospital's regime over another. We should be mindful that it is current government policy that prospective patients across the rest of the NHS should be encouraged to express choices in hospital care and that they should be acted on. If we cannot extend this agenda around choice to psychiatric patients, even in this limited way, we risk further excluding them and increasing the stigma of psychiatric treatment.
	The title of the proposed new clause is perhaps a misnomer as the "right" to which it refers is not the right for a patient to move hospital, but a right to have any request for such a move treated with appropriate seriousness by the detaining authority. There is therefore no reason for the Minister to reject the amendment on the grounds that it provides some form of positive right to treatment that can be exercised only at the expense of equitable provision within the NHS. That is not an issue here.
	The Minister will forgive me for anticipating what may be in his brief for this part of the debate, but I do not believe that the amendment raises problems in relation to what might be termed "vexatious petitioners"; in other words, patients or relatives who make repeated and ceaseless requests for the same thing. I recall that the Minister was concerned about this issue in relation to Amendment No. 19. He was anxious over the staff time that might be spent on repeating the reasons why a request had been denied and the effect on some patients of having such a denial repeated endlessly back to them.
	I think that these concerns are misplaced. Over the years, hospitals have learnt to manage such situations in relation to requests for managers' review of detention, when there are no limits on the frequency or number of requests that may be made for a hearing. If the managers have recently denied a request, giving reasons, and that request is repeated without any change of circumstances, I am sure that it is adequate to refer the patient or relative to the reasons already provided.
	I support the amendment primarily because it is necessary to build some counter weights into the 1983 Act to compel the worst practitioners into treating patients with greater respect. We need not worry about overburdening good practitioners with unnecessary statutory requirements. If they are any good the statutory requirements will underpin practices that we already have in place. It is the law's place in this area to establish minimum standards, and this should be one such standard.

Baroness Royall of Blaisdon: I am grateful to noble Lords for tabling this amendment on the arrangements that govern the transfer of a patient from one hospital to another. I recognise the issues relating to BME patients as explained by the noble Earl, Lord Howe, and the noble Lord, Lord Patel. The amendment raises important issues of good practice and reflects one of the recommendations of the independent inquiry into the death of David Bennett, a mentally disordered person who died at the Norvic Clinic in Norwich in October 1998. We accepted recommendation 19, but we recognise that it is not being properly implemented. However, we do not think this amendment is necessary.
	Transfers are arranged at the discretion of hospital managers, but patients and their families can make informal representations to hospital managers requesting a transfer, and hospital managers should consider any reasonable request. When doing so, they take account of such factors as the availability of beds and staff at the other hospital; the availability of suitable facilities there; and easier access for the patient to family and friends. These are just examples; there may be other relevant factors.
	It would not be right to introduce a prescribed process for transfer requests of the sort that this amendment would result in. As I have said, this should be a matter of good practice. There is, of course, guidance on transfers in the draft version of the code of practice that will accompany the amended Mental Health Act, but it may be that there is more that can be usefully said. Indeed, I am certain that there is. We can certainly see no objection to giving guidance in the new version of the code about the possibility of transferring to another hospital; that all transfer requests should be recorded; and that written decisions should normally be issued in response to such requests. It would certainly be possible to list the sorts of factors that hospital managers should take into account when deciding whether a transfer is appropriate. The factors cited in this amendment will be relevant. But there will be others. We shall consult widely before drafting the relevant chapter of the code. Similar arrangements will be made in respect of the code of practice for Wales.
	The range of factors that might be relevant in determining whether a transfer is appropriate is considerable. I agree that those mentioned in the amendment will be important, but there may be others in individual cases; for example, the level of security required may be a factor. By adopting the code of practice approach, it will be possible to get across to hospital managers more effectively than in legislation the range of factors that will be relevant.
	I recognise that the amendment is extremely well intentioned and that it is necessary to ensure that recommendation 19 from the David Bennett report is properly implemented. However, in our view, the amendment would result in an overly bureaucratic and restrictive procedure, and we believe that the code of practice is much the best way to deal with these issues. Therefore, I ask the noble Earl to reconsider the amendment.

Earl Howe: I thank the Minister for her constructive reply. I would certainly settle for a set of provisions in the code of practice that laid out the kinds of consideration to which I referred. I welcome what the Minister said on that front. I hope that some work can be done on that, but I am encouraged by her statement of intent that that will be so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 37 agreed to.

Earl Howe: moved Amendment No. 54:
	After Clause 37, insert the following new Clause—
	"Places of safety
	(1) Section 136 (mentally disordered persons found in public places) of the 1983 Act is amended as follows.
	(2) In subsection (2) for "72 hours" substitute "24 hours".
	(3) After subsection (2) insert—
	"(3) Notwithstanding subsection (1), a police station must not be used for a place of safety under this section unless the circumstances of the case are exceptional.
	(4) Where a police station is used as the place of safety the person must be—
	(a) as a matter of urgency examined by a registered medical practitioner and interviewed by an approved mental health professional and necessary arrangements made for his treatment or care; or (b) transferred to another place of safety for that purpose."
	(4) After subsection (2) insert—
	"(5) The patient may be taken by, or by a person acting on behalf of, a constable or approved mental health professional, from one place of safety to another but the total period of detention must not exceed 24 hours.""

Earl Howe: We come now to a matter of considerable concern to many in the mental health community—the use of police cells as so-called places of safety. Under Section 136 of the Act, the police have a power to take a person who, in a public place,
	"appears ... to be suffering from mental disorder and to be in immediate need of care or control ... to a place of safety".
	One definition of a "place of safety" under the Act is a police station. A person can be held under that power for up to 72 hours. He need not have committed any offence, but simply to have behaved in a way to give the impression that he was mentally ill and a danger to himself or to others.
	The main concern here is that a police station is not a therapeutic environment for someone experiencing acute mental health problems. The police have little training or expertise in looking after people in this condition, especially people who may be unpredictably suicidal. There is often no ready means of keeping detained individuals under observation and a person's state of mental health can deteriorate quite quickly. There is also the widespread feeling that police stations, with their implication of wrongdoing, are inappropriate places for the management even of very disturbed mentally ill people. That feeling is reflected in the National Service Framework for Mental Health, in the current code of practice and in numerous Mental Health Act Commission reports.
	The problem is that, although everyone agrees that it is a bad idea for police cells to be used for this purpose, they nevertheless are being used in that way regularly. In fact, it is estimated that police cells are used in about 80 per cent of occasions when Section 136 powers are invoked. That statistic is especially relevant to the African and Caribbean communities. Black people experiencing mental health problems are more likely to have contact with the police than people from other backgrounds are. The reasons for that are not straightforward; in some areas, part of the blame lies in poor levels of co-operation between the police and the NHS, and the failure of the NHS to take responsibility for such situations.
	The results are troubling. Nick Hardwick, chair of the Independent Police Complaints Commission, estimates that 50 per cent of deaths in police custody have involved people with mental health problems. There are, perhaps, three key points that the IPCC made in its evidence to the Joint Committee. First, it said that police stations should be used as places of safety only as an absolute last resort under wholly exceptional circumstances. Secondly, it said that a duty should be placed on the relevant health authority to assess need and provide appropriate facilities. Thirdly, it said that 72 hours is far too long a time to be in a police station before a medical assessment is carried out.
	The Police Federation would like to remove police stations from the legal definition of places of safety altogether. I unfortunately do not think it possible to go that far, but the Act should include a requirement that the place of safety must, wherever possible, be a psychiatric hospital or other therapeutic environment. Where a police station is used, there ought to be a clear requirement in the Act either to arrange an assessment or else to transfer the person to hospital within the shortest time possible. The amendment suggests a 24-hour maximum.
	The Act does not currently allow patients to be moved from one place of safety to another, which seems quite extraordinary. The consequence is that vulnerable people experiencing acute mental distress are left languishing for hours while the police locate two doctors and an approved social worker to undertake a Mental Health Act assessment, even if a hospital bed is available. At the very least, the law ought to be made clearer on this point, because the ambiguity in the wording of the Act on the legality of transferring patients between places of safety has given rise to uncertainty.
	I need hardly tell the Minister that there is also a human rights dimension to all this. In 2002, the Joint Committee on Human Rights had some pretty trenchant things to say on the subject and recommended that healthcare trusts should have a statutory duty to take responsibility for and look after people detained under Section 136.
	The case for these changes is, I believe, very strong. I hope that the Government will look constructively on the amendment and, accordingly, I beg to move.

Baroness Neuberger: I support most strongly everything that the noble Earl, Lord Howe, has said and, with the permission of the noble Lord, Lord Stevens of Kirkwhelpington, who is not in his place, but was here earlier, I express his strong support, too. He had hoped to speak to the amendment, had we moved a little faster in the debate. Like Nick Hardwick, who was quoted by the noble Earl, the noble Lord, Lord Stevens, feels that whatever else a police cell is, it is not a place of safety for people with mental illness. Over many years, he and I have discussed the enormous problems that this situation has caused, with fragile, vulnerable and very sick people held in police cells for up to three days. The system for moving them to another place of safety is not in place. Therefore, I hope that the Minister will accept the amendment and acknowledge that we must do something.

Baroness Meacher: Having worked for eight years with the Police Complaints Authority, I, too, strongly endorse the words of the noble Earl, Lord Howe.

Lord Hunt of Kings Heath: If only I had a magic wand that could solve this problem. In fact, I have every sympathy with the points that have been raised. There is no question but that a police station is not an ideal place in which to detain a mentally ill person awaiting assessment, and that, of course, hospital-based facilities would be much more appropriate.
	The issue that the Government have to deal with is that there may be occasions when a police station is the only available facility and when it is necessary, in some circumstances, to detain a person there for longer than 24 hours. For example, it may be impossible for a doctor and an approved mental health professional to get to the police station to examine the patient and interview him within that time, perhaps in a rural area. The person who is detained may be extremely agitated or be behaving aggressively or violently, and it might be necessary to take some time before an assessment can be made. The patient may not be co-operative. It may be difficult to get details of their identity and their family and friends. That is why we believe that sometimes it may be difficult to complete these things within 24 hours, particularly if the person is received at the police station late at night.
	I understand that my answer will be frustrating for noble Lords. They may be tired of me talking about the development of good practice, but that is one answer to this problem. There are areas where there is adequate alternative provision. For example, the development of hospital-based facilities is reasonably advanced in some parts of the country. I endorse the Metropolitan Police policy whereby police stations are used only as a last resort. That approach is appropriate and is the kind of good practice that we want to develop.
	I would bring some comfort to the noble Earl by saying that we are moving forward in facilitating that good practice. From April 2006, we have made available a capital package of £130 million for the improvement of the mental health estate—in particular, for the development of hospital-based places of safety. This money will facilitate an increase in hospital-based safety facilities and will reduce the reliance on police stations. We will enforce this in the code of practice that will accompany the amended Mental Health Act. The current code states that police cells should not generally be used. We plan to emphasise in the new version of the code that police stations should be used only as a last resort—for example, if nowhere more suitable is immediately available—and that assessments should be completed as soon as possible.
	At the end of the day, we need to retain the ability to use police stations if necessary, and we have problems with the sort of test that the noble Earl has suggested by stipulating exceptional circumstances, which may well be over-restrictive. I was not aware of the ambiguity in the law that he suggested, and I would be happy to take that issue away and look at it.

Earl Howe: In welcoming the latter assurance, as I certainly do, I must express my disappointment with the bulk of the Minister's reply. I do not accept his explanation. If one reads the amendment, it is clear that I do not propose removing police stations altogether from Section 136. I am quite consciously not doing so; there is a clear exception built into the wording of the amendment. I accept entirely that there are situations where there is no other option than for somebody to be in a police station—for example, in rural areas or when somebody is very violent.

Lord Hunt of Kings Heath: I do not want to delay the Committee, but the problem is the definition of exceptional circumstances and how they will operate. Clearly, we want to see a reduction in the use of police stations as places of safety, but I fear that the terms used in the amendment would not give enough discretion.

Earl Howe: It would be defined initially both by case law and by the code of practice, I suppose. I know that the Minister has resisted this, but I do not feel that this is something that can simply lie totally within the code of practice; there has to be something in the Bill. I wonder if the Minister could look at this amendment to see whether it could be made more acceptable. I do not say that every aspect of it is perfect. It would be extremely welcome and would avoid our bringing the matter back at the next stage if the Minister could undertake to have a second look.

Lord Hunt of Kings Heath: I have said that I will have a look at the ambiguity mentioned by the noble Earl. I can also consider the terms of the debate. However, I would not want to give him undue hope; it would be unfair to do so.

Earl Howe: I understand. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 55 not moved.]

Baroness Murphy: moved Amendment No. 56:
	After Clause 37, insert the following new Clause—
	"Ill treatment of patients
	(1) The 1983 Act is amended as follows.
	(2) In section 127(3)(a), leave out "six" and insert "twelve".
	(3) In section 127(3)(b), leave out "two" and insert "five"."

Baroness Murphy: This is a very brief point, which has been proposed to me by patients' groups, who feel that the penalties for ill treatment are derisory. As noble Lords know, prosecutions for ill treatment of mental health patients are very rare. We understand that this is because of the numerous factors that go into producing an abusive situation, particularly in institutions, which we are all too aware of in light of the Orchard House report.
	Occasionally there is indeed one person at fault. I have seen many cases where these people have been self-selected into working with vulnerable people because of the power that they can exert over the lives of the vulnerable. Some quite horrendous cases come to light. Then there are the exceptional cases which really must be prosecuted. It seems to patients' groups that we should have realistic penalties. These people need rooting out, particularly from services, before they can do harm. They are people for whom prosecution is appropriate and for whom real penalties are needed. I beg to move.

Lord Hunt of Kings Heath: I have considerable sympathy with the points raised by the noble Baroness and would be happy to take this back for consideration.

Baroness Murphy: I was so surprised by the Minister's response that I almost did not rise again. I thank the Minister for that very swift response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Wilkins: moved Amendment No. 57:
	After Clause 37, insert the following new Clause—
	"Repeal of section 141 of the 1983 Act
	Section 141 of the 1983 Act is hereby repealed."

Baroness Wilkins: This amendment calls for the repeal of Section 141 of the 1983 Act and it is strongly supported by the Disability Rights Commission and the mental health anti-stigma charity, ok2b.
	Section 141 currently discriminates against MPs with mental health problems in that it contains a power to remove them from their job on mental health grounds. It provides that, if an MP is detained under the Mental Health Act, the Speaker of the House has to be notified and, and as the noble Baroness, Lady Murphy, pointed out, the MP has the distinction of two doctors specially appointed by the Royal College of Psychiatrists being sent to examine him or her. If the MP is still detained after six months, his or her seat becomes vacant. However, if an MP is unable to attend Parliament or hold constituency surgeries because of treatment for a physical illness, no such provisions apply.
	Under the employment and office-holder provisions of the Disability Discrimination Act, it is unlawful to sack someone simply because they have undergone a period of hospitalisation. If someone is experiencing mental distress, the correct approach is to make reasonable adjustments—for example, to give them time off and allow a gradual return to work. MPs are excluded from the office-holder provisions of the legislation but we should surely ensure that the same process applies.
	The current provisions are not only discriminatory but they make it harder for MPs to be open about experiences of mental health problems, which reinforces stigma. That is not only damaging for them—living in fear of others discovering a mental health problem causes unnecessary fear and stress—but it also means that the opportunity to act as a role model for others with mental health problems, showing that it is possible to attain leadership positions, is missed.
	In 2005, the well-being charity, Together, conducted a survey of MPs' experiences of mental health. It concluded:
	"Sir Winston Churchill experienced depression, referring to it as his 'black dog', and nevertheless led Britain effectively through the Second World War, but contemporary politicians are still likely to fear ridicule and discrimination if they talk about their own mental health problems. It is perhaps not surprising that no sitting Westminster MPs have felt able to speak publicly about experiencing mental ill-health, even though our anonymous survey shows that several MPs—perhaps as many as 60—have had mental-health problems".
	The organisation ok2b has inquired of the House authorities whether Section 141 of the 1983 Act has ever been used. It would appear that it has not. In the circumstances, not only is the section out of keeping with modern thinking about how best to support people with mental health problems but it also appears pointless.
	I am of course aware that the draft mental health Bills proposed revised provisions for MPs, which would have extended to Members of the devolved legislatures. They offered some improvement of the current provision but could be considered equally discriminatory. I hope that the Government will revisit this issue in discussion with the DRC, ok2b and other stakeholders and that they will undertake to reform the 1983 Act to remove this outdated provision. I beg to move.

Baroness Barker: I have said on many occasions that I believe that, if there are no other good reasons for the existence of this House, it is to speak up for those who cannot speak for themselves. On this occasion, I merely wish to congratulate the noble Baroness, Lady Wilkins, on providing a service to Members of another place who clearly are in that position.

Earl Howe: I, too, congratulate the noble Baroness. Section 141 is about the most blatant piece of discrimination against mental illness as it is possible to imagine in statute. What message would be sent out if it were ever invoked? The message would be that mental illness is equivalent to gross misconduct, on which the Speaker would have no alternative but to take drastic disciplinary action. It would be equivalent to saying that being mentally ill makes you unfit to work and unfit to represent your constituency. I cannot believe that that is what we want the law to require the Speaker in the other place to do, so I very much hope that the Government will think again about Section 141.

Lord Hunt of Kings Heath: I am grateful to noble Lords for raising this issue. However, the Committee may consider it better for the other place to have a go at this before we come to consider it again. The Government are not persuaded that we should change the legislation at the moment.
	When the Speaker is notified that a Member is suffering from a mental disorder, as the noble Baroness intimated, he arranges for the Member to be examined by independent registered medical practitioners experienced in mental disorders—appointed by no less than the august person of the president of the Royal College of Psychiatrists, to whom we owe much in relation to our debate today.
	I know that the provision reads as if it is stigmatising and discriminatory, because legislators suffering from serious physical illnesses are not covered by similar provisions in other legislation. I think that a case can be made for it in the sense that the nature of mental disorder could affect whether a Member thinks he can still adequately do his job. We are also talking about cases where the individual is not being treated informally with their valid consent but compulsorily. The individual is being treated in hospital, so their freedom of movement is reliant on their being granted leave. Their ability to come to the legislature, or to be brought there to participate and vote, is therefore not in their own hands. That is rather distinct from the type of physical illness that the noble Baroness mentioned.
	It is true that Section 141 has not, to our knowledge, been used since the Act became law. However, if a legislator is still detained at the end of six months, it is not entirely wrong to suggest that their constituents—and we should think of the public interest; no one has mentioned the electorate or those whom the Member of Parliament is there to serve—should have the right to seek alternative representation. That could not be done without the legislator's seat being vacated. Overall, however, I think it is a matter for the other place.

Baroness Wilkins: I thank noble Lords for their support for this amendment and the Minister for his response—which was extremely disappointing. I should like to reflect on the matter, and I am sure that the other place will equally reflect on it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 58 had been withdrawn from the Marshalled List.]

Earl Howe: moved Amendment No. 58A:
	After Clause 37 , insert the following new Clause—
	"Places of safety
	(1) Section 135 of the 1983 Act (warrant to search for and remove patients) is amended as follows.
	(2) In subsection (3) for "72 hours" substitute "24 hours".
	(3) In subsection (6) for "residential accommodation provided by a local social services authority" substitute "any other suitable place the occupier of which is willing temporarily to receive the patient"."

Earl Howe: I want very briefly to raise a couple of additional points about places of safety.
	Section 135 of the 1983 Act is concerned with the situation where a person with a mental illness is living somewhere where he is being ill treated or is neglecting his own care. A power is given to the police to obtain a warrant to enter the premises and remove the person to a place of safety. As in Section 136, a period of 72 hours is specified as the maximum time in which a person can be so detained. For the reasons I gave earlier, I believe that this ought to be a much shorter period. I am suggesting 24 hours.
	However I also want to flag up what appear to be rather odd provisions in Section 135(6). A place of safety is defined here as, among others,
	"residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948".
	That description is one which is normally applied to care homes for the elderly. A care home is not the right environment for someone experiencing an acute psychotic episode. I therefore wonder whether it is time to look again at this provision.
	Similarly, I have doubts about the catch-all description at the end of subsection (6), which refers to:
	"any other suitable place the occupier of which is willing temporarily to receive the patient".
	That also does not seem appropriate if we are trying to cater for someone with an acute health need.
	Those are purely probing points at this stage. I should be interested to hear what the Minister has to say about them. If he has nothing to say now, I would of course be willing to accept a letter from him in due course. I beg to move.

Lord Hunt of Kings Heath: I apologise to the noble Earl. The reason I went off is that I thought when he moved Amendment No. 54 that he referred also to the content of Amendment No. 58A. Perhaps I could write to him in view of what he said.

Earl Howe: I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 38 [Mental Capacity Act 2005: deprivation of liberty]:
	[Amendment No. 59 not moved.]
	Clause 38 agreed to.
	Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:

Baroness Barker: moved Amendment No. 60:
	Schedule 6 , page 73, line 4, at end insert—
	"No charges for accommodation, care or treatment provided to P while deprived of liberty
	Where the managing authority deprives P of his liberty by detaining him as mentioned in paragraph 1(2) above, the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge."

Baroness Barker: I cannot tell you how delighted I am to stand up at this hour and start discussing a matter so technical that only a very few people understand it, but that is my misfortune. The next few amendments refer to the Bournewood gap. In the Chamber tonight we have some of the few people in this country who understand what that means. It might help if I briefly explained what the Bournewood gap refers to, small and technical though these matters are.
	The provision has come about as a result of a court case in which a person who did not have mental capacity went into care as a voluntary patient. When he attempted to leave, he was deemed not to have capacity to make that decision. He and his carers were unable to remove him from that deprivation of liberty. He took his case as far as he could and won. The court gave a judgment about deprivation of liberty. As those who took part in the many debates on this during the passage of the Mental Capacity Act will remember, we knew for some time that the Government had to bring in legislation to close that gap. He did not have rights equivalent to those of someone detained under mental health legislation.
	The Government, to comply, have brought forward proposals amending this legislation and the Mental Capacity Act. The department has helpfully issued a code of practice seeking to explain what this is all about. Page 9 of the code defines the meaning of deprivation of liberty, quoting almost verbatim from the European Court judgment. It also contains a small section on how one identifies when there has been a deprivation of liberty. It is a particularly difficult matter. In its judgment the court said:
	"It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance".
	I am not a lawyer, but that is a lawyers' charter. It is well understood by everybody concerned that this matter will be determined over time by case law. Therefore, what I am going to say, and what others and the Minister may say, could be important to future decisions in court about this law and its interpretation. So, late as it is, I am afraid that we have to go through these matters.
	The purpose of the amendment is to establish that where a person is deprived of his liberty in a care home under the Bournewood provisions, he comes under a care management scheme and the local authority or NHS body that commissions the care does not impose any charges for such care while the authorisation is in place. This issue is specific to those in care homes, because others detained under the Bournewood provisions are normally detained under the Mental Health Act or do not have sufficient personal capital, savings or income to pay for the care. Their care is usually free.
	Those who are subject to a Bournewood authorisation in a care home, uniquely among those who are deprived of their liberty, should not be expected to pay for their care while they are under that detention. Their detention is subject to Article 5 of the European Convention on Human Rights—it is detention—and Article 14 prohibits unjustified discrimination in the application of any other articles, including Article 5. So while there may not necessarily be any difference in the conditions of somebody detained under the Mental Health Act or the Mental Capacity Act, there would be for those people.
	I am perhaps going to pre-empt the Minister saying that she has every sympathy with me but that this could be quite expensive because of the number of people involved. That point has been made by other authorities. We on these Benches are of the opinion that there are two important points. One is that we should not set the precedent in law that those who are deprived of their liberty should be made to pay for their care. That is a dangerous precedent. But the second and perhaps most important point is to make sure that when old people—and it is largely older people who lack capacity—are taken into care homes, a proper care planning approach is taken and care is ordered in such a way that it does not deprive them of their liberty. We should aim for good practice where people are not unnecessarily prevented from going out as they wish and are able. This measure is in part about principle and in part about good practice. I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Baroness for giving us some of the background and for setting out the reasons why we are debating this issue. I urge noble Lords to take themselves back to those fabulous days when we debated at enormous length an important piece of legislation which I was very proud to take through your Lordships' House and pay tribute to the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, for the work they did in helping us to do that as effectively as we did. Other noble Lords know the part they played in this regard and I want to pay particular tribute to Lord Carter for the work that he did. Without him I am sure we would not have ended up with such an important piece of legislation.
	I am very sorry the noble Lord, Lord Rix, is not with us. I know he is in hospital and doing well. I am sure noble Lords will join me in wishing him well and hoping he will be with us soon, certainly for Report stage, as I need to hear his voice in this debate.
	We are in the Mental Capacity Act. The reason we are taking these clauses in the Mental Health Act is because, as noble Lords will recall, we were trying to find a solution that drew a consensus that dealt with the particular case, as the noble Baroness has said, of the Bournewood Hospital which kept someone described as an informal patient in hospital against the wishes of his carers. The European Court of Human Rights found that there had been a deprivation of his liberty in contravention of Article 5(1) and Article 5(4) of the European Convention on Human Rights. As a consequence the Government has moved to seek to address this problem in the most appropriate way.
	Adults have the right to make their own decisions; in some cases they are not able to do so. The Mental Capacity Act set out some critically important principles about the issues to do with capacity and what we should do if a person lacks the capacity to take the decision themselves. We recognise that some people who lack capacity to consent—and I will return to this—need to be deprived of liberty but are not detained under the Mental Health Act. Additional safeguards are needed to protect the human rights of these people. They must be protected from arbitrary detention and given speedy access to the courts.
	This is not about taking new powers to detain people. It is about giving safeguards to the most vulnerable in care homes and hospitals who need to have their liberty curtailed and considered and who, in some cases, need to be deprived of aspects of their liberty in order to keep them safe and protected and to provide the highest quality care. That is a fundamental issue which we need to address.
	The noble Baroness, Lady Barker, rightly says that we have not tried to define it, but I want to say what I believe she is looking for in terms of what the European Court of Human Rights has identified in judgments in cases to date as contributing to the deprivation of liberty. Briefly, they are: restraint was used, including sedation, to admit a person who is resisting; professionals exercised complete and effective control over care and movement for a significant period; professionals exercised control over assessments, treatments, contacts and residence; the person would be prevented from leaving if they made a meaningful attempt to do so; a request by carers for the person to be discharged from their care was refused; the person was unable to maintain social contacts because of restrictions placed on access to other people; and the person lost autonomy because they were under continuous supervision and control. I hope that that sets out some of the areas, but we have determined that ultimately this is for the courts to decide.
	I have made it clear that this is not about punishment and not about a deprivation in the wrong context. Looking at who should pay should be in the context of the well established principle of means testing, from which the Government have no intention of moving away. I know that noble Lords from other parties take a different view and we can debate at length the resources in the health service and the Government as a whole. Means testing has been a long-established principle. Therefore I do not have the sympathy for the amendment which the noble Baroness would have wished me to have. Hand in hand with it, there is a suggestion that the deprivation of liberty is negative; somehow being perceived as taking away from someone something that they would prefer to have. The whole basis of the Bournewood principle is that people are deprived of their liberty because they need to be made safe and secure and given high-quality care. I see no reason therefore to suggest that the means-testing element should be disapplied. If one accepts—and I do—the principle of means testing in these cases, it is in order to provide high-quality care. The principles behind the Bournewood provisions are precisely that.
	Furthermore, I do not accept the care plan approach, although I understand why the noble Baroness is raising it. Indeed, I had the privilege of meeting stakeholders this morning when we talked around this issue. While it is important to ensure that the highest quality care plan approach is taken by those working with individuals who lack capacity, I do not think you would necessarily get that or get to the point of saying, "We won't deprive them of their liberty because if we do we have to pay". That is not the right way to approach this issue. I accept that the underlying issue is to ensure that the decisions and the approach to the deprivation of liberty should be made only where it is in the right and proper interest of the individual and the best interests assessor will have the responsibility for so doing. But it would be wrong to take the approach that says, "If you've got to pay for it, perhaps it is an incentive not to do it". It is precisely in order to support and care for such people that we wish to do it.
	I do not accept that as a principle and therefore would reject the amendment and hope that the noble Baroness will withdraw it. However, I understand the issues underlying it and hope that within the code of practice we can ensure that the highest quality care is always provided in order to support people who lack capacity and who for reasons of good high quality care need to have a deprivation of liberty to some degree or other. I hope that on that basis the noble Baroness will withdraw her amendment.

Baroness Barker: The noble Baroness replied with her customary fullness of detail and consideration and I thank her for that. One aspect that ought to be stressed is the different ways in which care for older people in residential homes is paid for. The difference between self-funders and those who have their care commissioned by local authorities is an important factor in all this. Perhaps the Minister's reply underestimates the forces that might be at work in any case, depending on who is paying for the person's care. That may be a big consideration in whether an authorisation is triggered in the first place. That is an important consideration.
	It is important to say that detention and deprivation of liberty is more than a mere technicality. Just because people lack capacity—

Baroness Ashton of Upholland: I did not suggest for a minute that it was a technicality—I know that the noble Baroness is not accusing me of that. It is a critically important issue. The point I was making was that it is done in order to provide high quality safe care for someone, not as either some kind of punishment or detriment to their life. It is a necessity to keep them safe and secure to provide high quality care.

Baroness Barker: I fully accept that point and I apologise if I misrepresented what the Minister said, but she might concede that where there is a deprivation of liberty that is an evident indication that there is something wrong with someone's care—

Baroness Ashton of Upholland: I do not accept that because if we think about some of the circumstances of care that one is providing for individuals, the deprivation of liberty might be in order to ensure that they are secure and safe—one can think not only of elderly patients who may suffer from dementia but also, for example, those with severe learning difficulties perhaps on the extreme end of the autistic spectrum—and be classified in a range of ways: to ensure that they are able to socialise; to eat effectively; to be able to go outside properly; and so on. I do not think that it is about the quality of the care being negative but about ensuring that patients obtain the highest quality care.

Baroness Barker: There we have a difference because I believe that it is likely to indicate that there is something inappropriate about the care being received. We have not yet discussed that the amendment as proposed would cover independent care homes. That is an important point that will need to be considered at any future stage. I fear that at this hour, no matter how long I bowl on this important point, I am not going to get anywhere. I thank the Minister for her consideration and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 61:
	Schedule 6 , page 76, leave out lines 19 to 28 and insert—
	"( ) Any person may make a request for a standard authorisation where it appears to him that the relevant person is likely—
	(a) at that time, or (b) at some later time within the next 28 days, to meet all the qualifying requirements."

Earl Howe: In moving the amendment I shall speak also to Amendments Nos. 63 and 64. As currently drafted the Bill states that wherever the managing authority of a hospital or care home identifies that a person who lacks capacity is being or risks being deprived of liberty it must apply to the supervisory body for a standard authorisation of deprivation of liberty. I believe that there is a strong case for extending the right to apply for such an authorisation to anyone who becomes aware that a person who lacks capacity is being or risks being deprived of liberty. Deprivation of liberty is a serious matter. As soon as anyone becomes aware that it is taking place it should be assessed and authorised or refused as quickly as possible. That could best be achieved by extending more widely than is currently envisaged the pool of people who are entitled to request an authorisation.
	Hospital and care homes may not always be best placed to judge whether people in their care who lack capacity are being deprived of their liberty. It is not always obvious that a deprivation of liberty is taking place and a hospital or care home may believe wrongly but in good faith that one of their residents is not being or does not risk being deprived of liberty. In such cases a request for an authorisation would not be made. Widening the pool of people who can call for an authorisation to other interested parties such as inspection bodies, family members, friends or advocacy groups who may become aware of a potential deprivation of liberty before a hospital or care home does would provide an important additional safeguard.
	Few cases of deprivation of liberty are likely to involve deliberate abuse. However, I have concerns about the implications of leaving the right to request an authorisation of deprivation of liberty solely in the hands of the bodies responsible for the deprivations of liberty in the first place. Where a deprivation of liberty is taking place but is not justified and would not be authorised, the supervisory body would refuse an authorisation and rule that the deprivation of liberty is unlawful. Some hospitals or care homes may seek to avoid such a ruling by failing to request an authorisation. While the deprivation of liberty might well come to light eventually, it would do so more quickly if independent third parties had the right to request an authorisation. Such a right would also be a disincentive to hospitals or care homes which might otherwise avoid requesting an authorisation.
	Amendments Nos. 63 and 64 are designed to ensure that third parties which request a standard authorisation are informed of the result of their request. I beg to move.

Baroness Murphy: I know that my noble friend Lord Rix wished to make a point about the case that generated all this controversy. It resulted from the carers in the Bournewood case drawing it to the attention of the hospital that they did not feel that the patient should be detained. Unless we accept the amendment and changes in the safeguards, the Bournewood problem will not be solved.

Baroness Ashton of Upholland: I am grateful to the noble Earl and the noble Baroness. I had a very useful discussion this morning with a number of stakeholders, including representatives from the care home sector and other organisations, who made the very point that the noble Baroness made on behalf of the noble Lord, Lord Rix. The care homes were equally concerned to make sure that we did not move to a point where it was not clear who had the statutory duty and where the responsibility lay. I hesitate to say it, but requests could be made in an almost vexatious way, with people constantly asking questions. They wanted clarity.
	In statute, we must be clear that we are putting a duty on one body to identify anyone at risk of deprivation of liberty and to apply for authorisation. I do not say that to dismiss the concerns, but we must make sure that we have one body applying for authorisation and that we minimise the potential risks for individuals not to receive the safeguards to which they are entitled. That is why we have put it this way in the framework of the legislation.
	Where families are concerned that an authorisation should have been applied for, they will draw that to the attention of the care home or the hospital. It is important to recognise the reality of legal redress; therefore, a request should not be taken lightly. Families can take action through the complaints procedure, but if the question cannot be resolved, there is the opportunity to apply to the Court of Protection. There is a package of measures available but, having said that, I have been thinking about this quite a lot today. I am happy to go away and think whether there are any further steps I can take that would allay concerns, not least those of the family in the Bournewood case.
	I begin from the principle that one body needs to have statutory responsibility; it is a question of how best we can make sure that families, carers, and others are able to raise their concerns without muddying the waters in a way that would not help. I hope that on that basis the noble Earl will feel able to withdraw the amendment.

Earl Howe: That was a very welcome assurance; I could not have asked the noble Baroness to do more. I hope that we can have constructive discussions between now and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Countess of Mar: As it is nearly 10.50 pm, we have seven groups of amendments left and we have to go to bed by 11 o'clock, may I propose that the House do now resume?

Lord Grocott: I am a little startled to have had this proposed without any notice whatever, particularly from a senior Deputy Speaker. If that is the determination, the noble Countess will have to move this to a Division. She knows perfectly well that if she moves a Motion and we have a Division on it, that takes another quarter of an hour, whatever happens. I request that the noble Countess does not do that at this stage. I have no intention, nor does anyone else, of going on ad infinitum, but we certainly have time to debate another group. I respectfully suggest that the noble Countess does not move a Motion to resume the House at this stage.

The Countess of Mar: Can the Chief Whip assure me that the next group will not exceed the unusual retiring time of 11 o'clock on a Wednesday evening when the staff have to come to work at 11 o'clock tomorrow morning and there is still business to continue? Why do we not continue the next page on the next day?

Lord Grocott: I really do not think that we can negotiate the business of the House—it is already taking time to do so. I will say to the noble Countess—and it is farther than I would normally go—that I will talk to other members of the usual channels, including the Convenor of the Cross-Bench Peers, in the normal way. However, I strongly appeal to her to let us get on with this now and see where we get to.

Baroness Barker: moved Amendment No. 61A:
	Schedule 6, page 78, line 33, at end insert—
	"Request refused: supervisory body to make recommendations
	(1) This paragraph applies if—
	(a) a request is made for a standard authorisation; (b) the supervisory body are prohibited by paragraph 50(2) from giving the authorisation; (c) all assessments except the best interests assessment are positive; and (d) on the basis of the information taken into account in carrying out the assessment it appears to the supervisory body that there is, or is likely to be, a deprivation of liberty.
	(2) The supervisory body shall make recommendations on how a person's health and social care needs can be met in their best interests without depriving that person of their liberty, and shall monitor the implementation of these recommendations after a period of 14 days."

Baroness Barker: The two amendments in this group would have been supported by the noble Lord, Lord Rix, if he were here. They both try, from slightly different angles, to address the same question. When the supervisory body refuses to authorise the deprivation of liberty but believes that an unauthorised deprivation of liberty is taking place, it informs the relevant people, including the police and the relevant inspection body, that that is happening. The purpose of these amendments is to find out from the Minister what steps will be taken once a deprivation of liberty has been identified but not authorised. The Bill does not contain any provision to ensure that the relevant inspection body is informed once the supervisory body has identified that a deprivation of liberty is taking place. Where something is wrong, but it has not been deemed to be a deprivation of liberty, who does what to make sure that that situation does not persist? That is, in essence, the question that lies behind this amendment. I beg to move.

Earl Howe: I shall speak very briefly to Amendment No. 65, which is designed to ensure that where the supervisory body refuses to authorise a deprivation of liberty, but believes that an unauthorised deprivation of liberty is taking place, it informs the relevant people, including the police and the relevant inspection body. I have tabled the amendment more as a means of probing the Government than anything else. Once a deprivation of liberty has been identified but not authorised, it is important to know what steps would be taken next. It seems essential that where an unauthorised deprivation of liberty is taking place steps are taken as soon as possible to ensure that it stops. I see that in paragraph 44 of Schedule 6 there is provision to ensure that where it appears to the best interests assessor that there is an unauthorised deprivation of liberty and that the relevant person does not meet the best interests requirement then he must include a statement to that effect in his assessment, but it does not give any indication that that information should be communicated to the various people, listed in paragraph 58, who have to be given notice of any decision not to grant a standard authorisation. In any case, the list in paragraph 58 does not contain any inspection agencies. Once again, I hope the Minister will agree to look again at this point, which has been brought to my notice by the Making Decisions Alliance.

Baroness Ashton of Upholland: The noble Earl is right to point out the role of the best interests assessor, who has to give reasons in the report of his assessment for his conclusion that deprivation of liberty is not in the person's best interests. We think that that is the best way for that to be dealt with because he, rather than the supervisory body, will be in close contact with the person, his family, friends and carers and with care homes and hospital staff and will be best able to advise on how deprivation of liberty should be avoided. The way that Schedule 6 is drafted provides for the person concerned or anyone with an interest consulted by the best interests assessor and any independent mental capacity advocate to be told that the authorisation has not been granted. They will therefore be aware that the deprivation of liberty is unnecessary and will be expecting changes to take place in the care plan that has been established. I share the ambition to ensure that appropriate action is taken when unnecessary deprivation of liberty is identified. We think we can achieve that through the arrangements that we are making for the assessor to recommend how the deprivation of liberty can be avoided and through the code of practice. I am inevitably happy to think further about whether we can do more to strengthen that in the context of the code of practice and whether we have this right in the Bill.

Baroness Barker: I thank the Minister for that reply. She will understand the strength of feeling that lies behind this and the need to plug the gap. I am heartened by her comments and I look forward to her department coming forward with proposals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Royall of Blaisdon: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at 10.55 pm.